Moore v Harris ; Morris v Harris

• Jurisdiction: Ireland
• Judge: Mr Justice Mark Sanfey
• Judgment Date: 05 December 2022
• Neutral Citation: [2022] IEHC 677
• Year: 2022
• Court: High Court
• Docket Number: [2022] IEHC 3712 P [Record No. 2021/3711P]

Between

Aoife Moore

Plaintiff

and

Eoghan Harris and Twitter International Company

Defendants

Between

Allison Morris

Plaintiff

and

Eoghan Harris and Twitter International Company

Defendants

[2022] IEHC 677

[2022] IEHC 3712 P

[Record No. 2021/3712P]

[Record No. 2021/3711P]

THE HIGH COURT

Defamation – Disclosure – Balance of justice – Plaintiffs seeking “Norwich Pharmacal” type orders against the defendants – Whether the plaintiffs had established clear evidence of wrongdoing such as provided a basis for making disclosure applications to determine the identity of the alleged wrongdoers

Facts: The plaintiffs, Ms Moore and Ms Morris, in their respective proceedings, applied to the High Court for “Norwich Pharmacal” type orders against the defendants, Mr Harris and Twitter International Company, seeking disclosure of the identity of, or information in connection with, persons allegedly involved with certain Twitter accounts which each of the plaintiffs claimed had defamed them in a number of “tweets” which appeared on the platform of the second defendant between April 2020 and May 2021 in the case of Ms Moore, and between 5 August 2020 and 26 April 2021 in the case of Ms Morris.

Held by Sanfey J that: (i) both plaintiffs had established, on a prima facie basis, clear evidence of wrongdoing such as provided a basis for making disclosure applications to determine the identity of the alleged wrongdoers; (ii) the balance of justice required the disclosure of the identity of the alleged wrongdoers, and outweighed any requirements of privacy of alleged wrongdoers who sought to avail of anonymity; (iii) there was insufficient evidence to warrant disclosure orders against either defendant in respect of tweets posted on the “Dolly White” account; (iv) there was no evidential basis on which to order disclosure in relation to “retweets” from any of the named accounts; (v) he would make an order of disclosure in respect of the “Barbara J Pym” account against the second defendant, giving the plaintiffs and the second defendant liberty to re-enter the motions; (vi) subject to his findings in respect of the Dolly White account and the retweets, he would adjourn the balance of the plaintiffs’ application as against the first defendant with liberty to re-enter, so that the parties may consider their respective positions on completion of the disclosure process concerning the second defendant; (vii) in Ms Morris’ case, Mr Harris had averred that he was “not the person responsible for the operation of the @WhigNorthern Twitter account” – accordingly, as with the Barbara J Pym account, a disclosure order would be made against Twitter in respect of that account, and the balance of Ms Morris’ application against Mr Harris would be adjourned to await the outcome of that process.

Sanfey J held that the following order would be made in Ms Moore’s proceedings directed to Twitter as follows: “An order directing the second named defendant within ten days of service hereof to provide to the plaintiff by email to the plaintiffs’ solicitors the subscriber information that Twitter holds (which may include screen name and/or email address and/or telephone number provided by the user at the time of registration, and may also include the date and time of account registration, internet protocol address and account registration), and the internet protocol addresses of log-ins from 10th March, 2020 to 21st April, 2021 in respect of the Twitter account with the following name and Twitter handle: Barbara J Pym - @ BarbaraPym2.” Sanfey J held that the following order would be made in Ms Morris’ proceedings in respect of Twitter: “An order directing the second named defendant within ten days of service hereof to provide to the plaintiff by email to the plaintiff’s solicitors the subscriber information that Twitter holds (which may include screen name and/or email address and/or telephone number provided by the user at the time of registration, and may also include the date and time of account registration, internet protocol address and account registration), and the internet protocol addresses of log-ins from 5th August, 2020 until 26th April, 2021 in respect of the Twitter account with the name and Twitter handle: Barbara J Pym - @BarbaraPym2 And from 10th April, 2021 to 24th April, 2021 in respect of the Twitter account with the name and Twitter handle Northern Whig - @WhigNorthern.”

Applications granted.

JUDGMENT of Mr Justice Mark Sanfey delivered on the 5 ^th day of December 2022 .

Introduction

1 . This judgment concerns applications by each of the plaintiffs in their respective proceedings for “Norwich Pharmacal” type orders against both defendants, seeking disclosure of the identity of, or information in connection with, persons allegedly involved with certain Twitter accounts which each of the plaintiffs claims have defamed them in a number of “tweets” which appeared on the platform of the second named defendant (‘Twitter’) between April 2020 and May 2021 in the case of the plaintiff in the first proceedings mentioned above (‘Ms Moore’), and between 5 August 2020 and 26 April 2021 in the case of the plaintiff in the second proceedings above (‘Ms Morris’).

2 . The two sets of proceedings are maintained on the same basis, i.e. that each of the plaintiffs has been defamed by tweets for which the first named defendant and/or others are responsible. The plaintiffs were each represented at the hearing of these applications by the same legal team, and the separate applications of the plaintiffs were for the same reliefs – albeit, in the case of Ms Morris, in respect of an additional Twitter account in which she alleges she was defamed – and were made on the same legal basis.

The parties

3 . Aoife Moore is a journalist and, when her proceedings were initiated on 14 ^th May, 2021, was a political correspondent with a national newspaper, the Irish Examiner. Allison Morris is also a journalist and is and was at all material times a crime correspondent with the Belfast Telegraph.

4 . The first named defendant in both proceedings (‘the first defendant’ or ‘Mr Harris’) is a journalist and was a columnist with the Sunday Independent until in or about May 2021. The second named defendant (‘the second defendant’ or ‘Twitter’) in both proceedings is a private unlimited company which is involved in the provision of the well-known media platform ‘Twitter’.

The proceedings

5 . Each of the plaintiffs issued their separate proceedings on 14 ^th May, 2021. Each seeks the same reliefs as against the first named defendant: damages (including aggravated and/or exemplary damages) for defamation, an order pursuant to s.33 of the Defamation Act 2009 restraining further defamatory statements and a correction order pursuant to s.30 of the Defamation Act 2009. Norwich Pharmacal orders were sought against both defendants, with comprehensive and detailed orders being sought against Twitter, although no substantive, as opposed to procedural, relief was sought against Twitter.

6 . On 10 ^th November, 2021 and 16 ^th November, 2021, statements of claim were delivered by Ms Moore and Ms Morris respectively. By that stage, the exchange of affidavits in the present applications was all but complete, although those applications were yet to be heard. Counsel for the plaintiffs relied on the statements of claim in support of the plaintiffs' applications, which resulted in criticism on behalf of the defendants at the hearing. Where appropriate, I shall refer to the contents of the respective statements of claim below.

The reliefs sought in the present applications

7 . The reliefs sought in each of the notices of motion in the present applications are as follows:-

“(1) A “ Norwich Pharmacal” type order and or an order pursuant to the inherent jurisdiction of this Honourable Court directing the First Defendant to make disclosure of the identity of the persons who are or were the subscriber(s), user(s), controller(s) and/or registered owner(s) of the Twitter accounts or who are or were in the group or on the panel of ‘curators’ who oversaw, used or contributed to the Twitter accounts on the Second Defendant's platform at:

— Barbara J Pym—@BarbaraPym2

— Dolly White —@Dollywh72057454

[In the case of Ms Morris' notice of motion, the same relief was sought in respect of

— Northern Whig —@WhigNorthern]

(2) A “Norwich Pharmacal” type Order directing the second defendant, whether by itself, its servants or agents and all persons having knowledge of the making of the order to make disclosure of:

(i) The name(s), address(es), telephone number(s), email address(es) or any other contact details together with the internet protocol numbers (IP addresses) associated with all log-ins and log-outs, geographical locators, and/or any other indicia of identification of the person(s) who are or were the subscriber(s), user(s), controller(s) and/or registered owner(s) of the Twitter accounts with the names and Twitter handles:

(a) Barbara J Pym —@BarbaraPym2, and

(b) Dolly White —@Dollywh72057454.

[In the case of Ms Morris' notice of motion, the same relief was sought in respect of

— Northern Whig —@WhigNorthern]

(ii) the names and Twitter handles of the Twitter accounts which re-published (Re-Tweeted) defamatory statements published of and concerning the plaintiff using Barbara J Pym —@BarbaraPym2 and/or Dolly White – @Dollywh72057454 (which said accounts were suspended by the second defendant);

(iii) the name(s), address(es), telephone number(s), email address(es) or any other contact details together with the internet protocol numbers (IP addresses) associated with all log-ins and log-outs, geographical locators, and/or any other indicia of identification of the person(s) who are or were the subscriber(s), user(s), controller(s) and/or registered owner(s) of the Twitter accounts at 1(ii) above;

(iv) copies of all defamatory...