Commercial Litigation and Dispute Resolution Blog

The internet is a wonderful thing.  It provides instant access to a universe of information on nearly endless subjects.  It is a worldwide forum for the exchange of content and ideas.  Anyone with access to a computer can opine on anything or anybody.  Frequently, commentators stray across the line and post defamatory content, often because they think their conduct anonymous.  In such cases, what can the defamed party do?  They do not know who to sue in order to seek recourse for this defamation.  If you are defamed on the internet and need to take steps to bring that conduct to a halt, the courts can provide you with a remedy.

The first step is to find out who is behind the vitriolic commentary.  This can be done be obtaining a Norwich order from the court.  Such an order, based on English legal authority, will compel a third party to disclose information in their possession about the identity of the alleged wrongdoer.  Such orders are granted where there is no other practical way to obtain this information.  In the context of defamation on the internet, such an order requires internet service providers, administrators or website authors to disclose information such as the identity of the anonymous commentators, including their names, email addresses, ISP addresses and the like.  This should allow the identity of the author of any defamatory content to be revealed.

A recent example of the power of such a court order arose in the case of Nazerali v. Mithchel.  Mr. Nazerali is a successful businessman who had been the subject of anonymous, defamatory comment on a web site called “deepcapture”.  Nozone Inc. maintained the servers hosting the website.  Godaddy.com was the registrar of the domain name and knew the identity of the owner.

Mr. Nazerali found that potential clients who searched his name on Google came across these disturbing comments and, as a result, raised concerns with him about what they learned.  This was proving to be a serious impediment to Mr. Nazerali’s ability to do business.  However, he was unable to seek any remedy because he did not know who had written the impugned posts.  As a consequence, he applied to the courts for an order seeking to suspend the operation of the website and compelling Nozone Inc. and Godaddy to disclose the identity of those behind it.  He did so without notice to anyone on the premise, accepted by the court, that if notice was given, the owners of the website would simply transfer the hosting of the website and the domain registration to keep their identity secret.

In order to obtain the required court order, Mr. Nazerali had to prove that the words complained of were so manifestly defamatory that any jury verdict to the contrary would be considered perverse.  The court was satisfied that test had been met though noted that, for reasons presently unknown, the comments may well be defensible.  However, “on their face, they are clearly defamatory.”  As a result, the court concluded that “the plaintiff's reputation is indeed likely to suffer irreparable harm.  A damaged reputation is almost impossible to rehabilitate, particularly when the instrument of damage is the worldwide web.”  Based on this, the court ordered the temporary suspension of the website and prohibited the transfer of the domain registration.  This allowed Mr. Nazerali to provide notice of his the application for disclosure to both Nozone Inc. and Godaddy without fear that the defamers would learn of it and simply move the website and its registration beyond his reach.