A Countdown conundrum – star and blogger obtain order to reveal author of deleted tweets

Posted: September 29, 2020

The High Court has granted a Norwich Pharmacal order to a Countdown presenter and a campaigner over an anonymous Twitter account suspected of being operated by the defendant, Daniel Bennett (David Collier, Rachel Riley & Tracy Ann Oberman v Daniel Bennett [2020] EWHC 1884 (QB)).  The account-holder in question, tweeting under the pseudonym Harry Tuttle, had defamed them in a series of tweets alleging (among other things) dishonesty, hypocrisy and far-right politics – tweets that were later deleted. 

In an unusual feature of this case, the defendant had accepted legal liability for the account, but declined to confirm or deny being the author of the tweets.  Yet in the judge’s view that did not deprive the relevant claimants of the right to identify the author and to have the tweets and related data disclosed.

Comment

Although this judgment dealt with an “exceptional jurisdiction with a narrow scope” in Norwich Pharmacal relief, it illustrates important general points on access to justice and the common-law process for defamation claims.  It emphasises the importance of identifying the tortious wrongdoers themselves in order to conduct fair and public proceedings, particularly in libel claims with their “vindicatory aspect”.

It is also worth noting the judge’s dismissal of the defendant’s submission that this was a mere “fishing expedition”.  As the judge emphasised: “I do not consider that seeking the identity of a publisher and a limited number of focussed publications … can be regarded as ‘fishing’ for a cause of action in libel.”  He was similarly withering about the “highly unmeritorious” argument that there could be no action in libel for failure to plead the tweets in question, given that the defendant had removed them from public view.

This will provide comfort to claimants who might fear they have been deprived of a cause of action in libel because tweets (or other publications) have been removed or deleted by a defendant.  There must, however, be sufficiently detailed evidence (by way of partial evidence or clear and precise sworn testimony), or else claimants might find their applications rejected, as happened to Ms Oberman in this case. 

In parallel, those operating online under a cloak of anonymity might think twice about what they tweet, knowing that deletion is not necessarily enough to protect against a libel claim.  That will be consonant with claimants.

Thomas Moore, Associate, Simkins LLP

To read the full article, click here.  Written for Entertainment Law Review.