Do Not Disclose: The problem of internet anonymity

This article reviews a recent decision of the Inner House which refused to order disclosure of the identity of two anonymous users of the Tripadvisor website.  

21 January 2015

In this article, we review a recent decision of the Inner House which refused to order disclosure of the identity of two anonymous users of the Tripadvisor website.  

One challenge faced by many potential litigants is obtaining sufficient information to bring a claim. When the claim relates to online activities, the relative anonymity of the internet may make the identity of the defendant the first problem. Often, websites will not be inclined to voluntarily disclose the identity of their users and the extent to which courts can compel them to do so was the subject of a recent Inner House decision in Martin and Jaqui Clark v Tripadvisor LLC.

The petitioners in this case owned a guest house near the West Highland Way. They wished to bring an action against two internet users who had posted allegedly defamatory reviews on the Tripadvisor website. However, the comments were posted under pseudonyms, meaning that the Clarks had to discover the identity of the posters before any action could be raised.

In order to discover the identity of the authors, the Clarks petitioned the Court under section 1(1A) of the Administration of Justice (Scotland) Act 1972. This provision enables the Court to order the disclosure of information regarding the identity of any person who could either be a witness or a defender in civil proceedings. The difficulty was that the Act only applies to Scotland, and Tripadvisor is incorporated in Massachusetts. Further, when the Clarks created their Tripadvisor account, they had agreed to the website’s terms and conditions. These stated that any dispute arising from the use of the website would be governed by the exclusive jurisdiction of the courts in Massachusetts.

The Petitioners sought to rely on the Civil Jurisdiction and Judgements Act 1982. This allows Scottish courts to assist foreign proceedings by making an order under the 1972 Act. The Petitioners submitted that this implied that the Act had effect abroad. In relation to the enforceability of Scottish judgements abroad, they submitted that this should not be a factor considered by the Court when deciding whether it should grant judgement. This was because the existence of a judgement could at times be sufficient to persuade other parties to co-operate.

The Court refused the Petition, holding that the 1972 Act did not extend beyond Scotland. It then held that the Petitioners had agreed to the exclusive jurisdiction of the courts in Massachusetts, meaning that it was unable to make any order in this case.  The Petitioners will now need to use the Letters of Request procedure, or instruct agents in the USA, if they wish the information to be made available. In response to the Clarks’ submissions regarding enforceability, it held that (in general) a court order will not be granted where it is unlikely to be voluntarily complied with and cannot be enforced.

The decision shows the difficulties involved when a Scottish individual, or business, is subject to defamatory comments made online. However, the impact of the decision goes beyond defamation claims. It is easy to imagine that a petition could be raised seeking to disclose the identity of a seller of counterfeit goods on an online marketplace. Following the Tripadvisor case, this would be unsuccessful. The anonymity of the internet is one reason why many litigants choose to target online intermediaries, such as ISPs and search engines, instead of internet users.