GovData Ltd v Indeed UK Operations Ltd [2024] EWHC 39 (Comm) (12 January 2024)

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[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] England and Wales High Court (Commercial Court) Decisions You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> GovData Ltd v Indeed UK Operations Ltd [2024] EWHC 39 (Comm) (12 January 2024) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2024/39.html Cite as: [2024] EWHC 39 (Comm) [New search] [Printable PDF version] [Help] Neutral Citation Number: [2024] EWHC 39 (Comm) Claim No: CC-2023-MAN-000069 IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS IN MANCHESTERCIRCUIT COMMERCIAL COURT (KBD) 12 January 2024 B e f o r e : His Honour Judge Pearce sitting as a Judge of the High Court ____________________ GOVDATA LIMITED Claimant - and - INDEED UK OPERATIONS LIMITED Defendant ____________________ Mr IAN SKEATE instructed by way of direct access for the Claimant MS CLAIRE OVERMAN instructed by Lewis Silkin LLP for the Defendant Hearing date: 1 November 2023 Judgment handed down: 12 January 2024 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © INTRODUCTION The Claimant is a company that (according to its website) is a market leader in Public Sector business and provides specialist advice to assist companies that are looking to gain access to government business. The Defendant operates an employment website, that lists jobs and also provides a facility for the anonymous posting of information about employers. From the material in the hearing bundle, it would appear that those posts are typically from ex-employees speaking of their experience of working for the particular company - certainly the four reviews identified by the Claimant in this case are said to come from its former employees. The Claimant contends that certain anonymous reviewers have posted reviews that are critical of the Claimant and its management on the Defendant's website. It alleges that those reviewers are (or at least may be) guilty of wrongdoing vis-a-vis the Claimant (or certain employees of the Claimant). It brings this claim in an attempt to identify putative wrongdoers on the basis that it has no other way of identifying them. The order sought is broadly speaking of a kind that has been developed by the court in a line of cases, generally known as Norwich Pharmacal orders. In accordance with other courts that have dealt with applications similar to this, I shall call the anonymous reviewers the "targets." This is in the sense that their identity is the target of this application. At the beginning of this hearing, I ruled that, notwithstanding the parties' names had been anonymised in the court list, there was no good basis for anonymising them in the judgment. I gave my reasons for that ruling at the time. Accordingly, the parties may be identified by name. THE CLAIM AS PLEADED This claim is brought pursuant to CPR Part 8. The Claim Form, issued on 8 September 2023, pleads the Claimant's case as follows: "The Defendant, via its operation on the website www.indeed.com has facilitated the wrongdoing of others in that forum on dates between 01/01/2018 to 28/02/2023. The wrongdoing comprised of statements about the Claimant published on the website by the forum users whose identities are currently unknown to the Claimant. The statements contain seriously defamatory allegations about the Claimant. The Claimant is entitled to seek redress in relation to the statements which contain seriously defamatory allegations. The Claimant wishes to inspect the information requested so as to be able to take legal action or seek other redress. The Defendant is able to provide the information from which the individuals identities can be ascertained. The Claimant is not able to identify the persons responsible for the postings unless the Defendant provides the requested information ." The order sought by the Claimant is put in these terms in its Draft Order: "The Respondent must by 4.00pm on 18th August 2023 carry out a reasonable search to locate the information sought below and make and serve on the Applicant a witness statement stating whether that Information is now in its control, and to the extent that such information was once but is no longer in its control and what has happened to that information. 1.1 We require all personal identifiers of the publishers of the posts on Indeed of the reviews detailed at pages 2 to 5 of the bundle containing the comments we wish to take further legal action on. These include but are not exclusive to the registrants name, age, location, IP address, telephone and mobile numbers and email addresses. We additionally require information on whether they have logged into or created an identity via a 3rd party identity verification such as Facebook or google in order to create an account. (the Information). 2 The Applicant has permission to use the information provided pursuant to this Order for the purposes of bringing proceedings for Defamation, libel and any other such actions we are so advised to pursue in respect of untrue and malicious information posted against the company and its employees/shareholders/directors." The Claimant relies in support of the application on statements from its Chief Executive Officer, Mr Christian Victor Hugo, dated 21 March 2023 and 26 October 2023 and from its Chief Operating Officer, Ms Kelly Ann Hugo, dated 5 May 2023 and 26 October 2023. The Defendant relies on statements from Mr Thomas Dowling of Indeed Ireland Operations Ltd dated 25 October 2023 and Ms Anne Mannion of its solicitors of the same date. AMENDMENT By Application Notice dated 23 October 2023, the Claimant applied to add Mr Christian Victor Hugo and Ms Kelly Ann Hugo as Claimants. Mr Hugo is identified in some of the reviews by job title, though Ms Hugo is not. Nevertheless it might be arguable that they are people to whom the reviews are referring and therefore might be relevant Claimants. If, as the Claimant contends, this claim is good without the addition of Mr Hugo and Ms Hugo, their addition as Claimants would not be necessary because GovData itself would be able to achieve the remedy it seeks. If, as the Defendant contends, the claim is doomed to failure for reasons unrelated to the fact that Mr and Ms Hugo are not parties, their addition to the claim would add nothing. It is only if the underlying claim is otherwise good but fails for want of joinder of one or both of Mr and Ms Hugo that their addition to the claim would be necessary to achieve the Claimant's purposes. Accordingly, I propose to consider the claim to determine whether this is so before determining the amendment application. There is a second manner in which the Claimant seeks to change the way it puts this application, albeit that in this respect there is no formal application before the court. The Claim Form does not identify which reviews the Claimant says should be the subject of the order sought. The Draft Order provided on the application seeks the disclosure of "all personal identifiers of the publishers of the posts on Indeed of the reviews detailed at pages 2 to 5 of the bundle containing the comments we wish to take further legal action on." This is a reference to the four reviews which appear at pages 17 to 21 of the Hearing Bundle (Reviews 1, 2, 3 and 4 respectively). Those Reviews are dealt with individually below. However, in his oral submissions, Mr Skeate for the Claimant invited the court to make a broader order, identifying other anonymous reviewers who had used the Defendant's website. The existence of other reviews that have been removed from the website is referred to in paragraph 9 of Mr Hugo's witness statement of 21 March 2023, and indeed in that statement he refers to obtaining relief in respect of other reviews. I deal further below with the lack of detail of other reviews in respect of which the Claimant seeks an order. There is of course nothing to prevent a party seeking an order on different terms than the draft that it produces in its application, but the failure to produce a draft order encompassing the other reviews creates considerable difficulty in making such an order. There can be no doubt that a Norwich Pharmacal Order in respect of anonymous reviews which could no longer be shown to the court would require careful drafting to ensure that the Defendant was clear as to what it was obliged to disclose. THE LAW � NORWICH PHARMACAL ORDERS The requirements for Norwich Pharmacal orders are not in issue. They are summarised in Mitsui & Co Ltd v Nexen Petroleum Ltd [2005] EWHC 625 (Ch) at [21]: "(i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; (ii) there must be a need for an order to enable action to be brought against the ultimate wrongdoer; (iii) the person against whom the order is sought must be (a) mixed up in so as to have facilitated the wording; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued." If these requirements are met, the Court has a discretion whether to make the order sought. The court should only make an order if it is necessary and proportionate in all the circumstances (see Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29). In Rugby Football Union v Viagogo Ltd [2012] UKSC 55, the Supreme Court identified ten non-exhaustive factors to which the court should have regard in determining the grant of relief: a. the strength of the possible cause of action contemplated by the applicant for the order; b. the strong public interest in allowing an applicant to vindicate their legal rights; c. whether the making of the order will deter similar wrongdoing in the future; d. whether the information could be obtained from another source; e. whether the respondent to the application knew or ought to have known that they were facilitating arguable wrongdoing; f. whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result; g. the degree of confidentiality of the information sought; h. the privacy rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the individuals whose identity is to be disclosed; i. the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed; j. the public interest in maintaining the confidentiality of journalistic sources. The decision in Viagogo involved consideration of the privacy of potential wrongdoers who were allegedly selling rugby tickets at more than their face value. Whilst it clearly involved issues of privacy, it did not, unlike the instant case, involve any issue of freedom of expression. The particular factors in play in cases that do involve arguments about freedom of expression were considered by Nicklin J in Davidoff v Google [2023] EWHC 1958. Like this case, the claimants in Davidoff were seeking to identify targets who had posted anonymous reviews (in that case, reviews of a firm of estate agents). Again as in this case, the claimants stated an intention to commence proceedings in defamation and/or malicious falsehood (though as we shall note later, certain other causes of action may be in play here). Having noted that the order sought raised issues under both Article 8 (respect for private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights, Nicklin J stated at [30]: "Article 10 protects both speech by an identified individual and anonymous speech. Whilst anonymity on the Internet can be used as a cloak behind which to harm others by unlawful acts, not all anonymous speech is of this character. Such speech, particularly in a political context, as a dimension of freedom of expression, can have a real value and importance. It also has a long pedigree both in the United Kingdom and the United States... " Nickl

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