22 May 2019

Disclosure orders – an order to snitch? Or a stitch in time?


Amber Melville-Brown
Partner | US

Recent reporting of a High Court disclosure order has highlighted the danger of defaming third parties under the cloak of anonymity.

In early April 2019, a High Court judge ordered the website Mumsnet to disclose the identity of one of its users who had allegedly defamed a transgender activist on the site.

Such disclosure orders enable a claimant who has been abused anonymously, to seek to track down their detractor in order to be able to bring proceedings against them. The order is sought against the “innocent” third party website, requiring them to provide the name, address, e-mail address and other relevant contact details of the party using their services allegedly for ill. Once armed with that information – otherwise inaccessible to the claimant – they can then bring appropriate legal proceedings against the real wrongdoer.

As youngsters, many of us will have been encouraged by our parents to do the right thing and shine the spotlight on bad behavior and bullying, and to “call out” that unsociable activity. On the other hand, we may also have been encouraged to be loyal to friends, and not to “snitch”.
There is equally a tension for websites between preserving the privacy and respecting the data protection rights of its users, and not being used as an unwitting conduit for the anonymous publication of defamatory allegations, or the publication of otherwise unlawful material which invades privacy, or which harasses and bullies.

Disclosure orders therefore are often neither consented to nor opposed by the websites. Rather, they take a neutral stance leaving the decision to the court. In that way, they can properly give up the information if ordered to do so; but can also look their users in the eye and rightly say that they are not simply snitching every time a claimant comes their way looking for them to spill the contact-beans.

Accordingly, orders of this nature help to maintain a healthy balance between websites keeping the confidence – and business – of their users while also keeping on the right side of the law.

Of course the “data out” in compliance with any disclosure order is only as good as the “data in”. A user may have been less than forthcoming or truthful with his or her contact information when registering with the site. And this may be particularly likely where said user has a penchant for privacy invasion, or a desire to defame, and where he or she has set up the online account for that very purpose. Then, even the magic of a court order may not unmask the defamer hiding behind his Harry Potter cloak of anonymity.

The internet is a fantastic resource for education and entertainment. It remains however, a breeding ground for damaging allegations and hurtful conduct by anonymous users too cowardly to face those they accuse and abuse.

Anyone who is being damaged by hurtful information online should contact the website in question and report the activity, or seek legal assistance if a proper response is not forthcoming.

Category: Article