In an unprecedented attack on freedom of expression in Britain, a Catholic news website in the UK is being asked to reveal a source, and threatened with court action based on a law used by the copyright industries in peer-to-peer enforcement cases. The action, being brought in the High Court today, will attempt to get the name of the source using a Norwich Pharmacal order, normally reserved for intermediaries in copyright cases.
This case concerns the website Independent Catholic News, and St Mary’s University College, a Catholic educational institution in south-west London.
St Marys alleges that the Independent Catholic News published an anonymous reader’s letter that was defamatory, and it has threatened the court action to obtain the name of the letter-writer.
The website editor, Josephine Siedlecka, has refused to provide the name of the reader who wrote the allegedly defamatory letter. The website has since removed the letter, and describes it as ‘critical’ of the college. Other, signed letters indicate recent difficulties at the college.
According to a press statement issued on behalf of Ms Siedlecka, lawyers acting for St Marys intend to apply for a Norwich Pharmacal Order that will force Ms Siedlecka, to hand over the name. It’s understood that the application for the order will be made tomorrow, 12 November.
A Norwich Pharmacal order enables information to be obtained from intermediaries who may be innocent of any charge, but who may hold data pertinent to a case. It is used by the copyright industries to obtain personal data from ISPs for copyright enforcement purposes.
It would also appear that the Norwich Pharmacal order provides an expedient and potentially a short-cut route to legal action, rather reminiscent of provisional measures in ACTA.
Usually, a case of this nature would be handled under defamation law, which takes years. In this case, the application will be made just over a month after the letter was originally published.
The order, if granted, could also mandate the seizure of Ms Siedlecka’s computers, and she could risk going to prison.
This is not what we expect in Britain, where we have had a proud tradition of a free press since the lapse of the Licencing Act in 1695. The Independent Catholic News is a volunteer website, and is likely to struggle to fight the case.
However, the action is unsurprising when one notes that the lawyers acting for St Marys University College are Wiggin LLP.
Wiggin’s other clients include the BPI and the Motion Picture Association. The copyright industries are no stranger to Norwich Pharmacal orders, which provide a way to get hold of the personal data.
Wiggin was the law firm representing the rights-holders in the Judicial Review of the Digital Economy Act, and in the case of 21st Century Fox v BT.
If web-based journalists are to be targeted with these heavy-handed legal tactics, it will almost certainly have a chilling effect and the case may be a siren warning.
The mainstream media - post Leveson – are certainly having a difficult time and arguably discredited. While we wait for Lord Justice Leveson to finalise his report on media regulation, action like this is unhelpful.
On a brighter note, a previous attempt to use a Norwich Pharmacal order against a media company was rejected by the European Court of Human Rights.
Update: the order was granted and subsequently the case was dropped.
I was asked to explain why I called it an 'unprecedented attack on freedom of expression'. In essence, my point turned on the use of a Norwich Pharmacal order. These are intended to be used in respect of intermediaries. In the Internet context, they may be used against ISPs or web host companies - neutral carriers, and hosts of content who do not hold any editorial control. This case threatened to set a precedent that all Internet news sites and blogs could also be treated as intermediaries from a legal standpoint, overriding other statutes and case law which gives special protection for journalists sources, in order to enable freedom of speech, and it could open the way for many sites to be hit with these quick-fire disclosure orders.
The case is listed as Josephine Siedlecka vs Professors Philip Esler, Janine Griffiths Baker and Lesley Haig. In the High Court today (12 November).
Other accounts of the case:
This is an original article from Iptegrity.com. If you refer to it or to its content, you should cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, Copyright industry tactics tried against Catholic news website , in www.iptegrity.com, 12 November 2012 . Commercial users - please contact me.