"Anonymity is a shield from the tyranny of the majority", said the US Supreme Court in 1995. Yet while anonymity (or pseudonymity) on the internet may encourage free and open discussion, it also provides cover for counterfeiters and other criminals. A couple of recent cases demonstrate how the courts have dealt with the tension between the right to privacy and the right to identify and sue wrongdoers.
The Hot Water case
Davidoff, the perfume brand (now held separately to the Davidoff tobacco brands), bought fake "Davidoff Hot Water" perfumes from a pseudonymous eBay seller. In so doing, Davidoff's lawyers identified the bank account of the seller, but could not uncover any further details. Davidoff therefore asked the bank to disclose details of the account holder, but the bank refused to do so. Davidoff sued to force the bank to disclose those details.
Pursuant to the IP Enforcement Directive, brand owners are entitled to responses to "justified and proportionate requests" for information on the "origin and distribution networks" of infringing goods. However, that right is "without prejudice to other statutory provisions which govern confidentiality or personal data".
Davidoff argued that its request for account-holder information was justified and proportionate in order to identify the origin and distribution network of the infringing goods. The bank argued that its duties of confidentiality and data protection prohibit the disclosure of that information.
The German Federal Court of Justice (the Bundesgerichtshof) has asked the Court of Justice of the EU for guidance on the interplay between the two sets of rights and duties. The guidance is not expected to come down for some months but in its reference the German court expressed its view that the right of Davidoff to obtain account-holder information should outweigh the bank's duties of confidentiality and data protection.
Had the matter been in the UK ...
Had they been in the UK, Davidoff could have sought a Norwich Pharmacal Order (named after the Claimant in the House of Lords case which first established the Courts' jurisdiction to make such Orders).
A Norwich Pharmacal Order allows a brand owner to obtain documents or information from a third party which is mixed-up in an infringement, whether innocently or not. The principle was stated by Lord Reid as follows:
"…if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers."
Since 1974, Norwich Pharamacal Orders have been used not only to identify wrongdoers but also to identify the full scope of infringing acts, trace assets, identify the source of published information, and to enable claimants to plead their case.
Limitations on the grant of Norwich Pharmacal Orders
However, the recent case of NML Capital v Chapman Freeborn  EWCA Civ 589 shows that the Court's jurisdiction to make such orders is not without limit.
The background to this case is that NML Captital ('NML') is owed around $300m by the Republic of Argentina. In order to avoid NML seizing its Presidential aeroplane in satisfaction of that debt, Argentina chartered an alternative plane from Chapman Freeborn for President Kirchner's tour of Asia.
NML sought a Norwich Pharmacal Order, requiring Chapman Freeborn to disclose information about the charter agreement and any bank accounts from which payment had been made by Argentina. NML hoped to enforce against the remaining value in the charter, and also identify bank accounts against which further action could be taken.
However, NML was denied the Order it sought, both at first instance and on appeal. Chapman Freeborn was not sufficiently mixed-up in any wrongdoing for the Court to have jurisdiction to make such an Order. The wrongdoing here was the failure of Argentina to pay the $300m; the charter of the aeroplane did not further that wrongdoing. There was no obligation on Argentina to fly its Presidential aeroplane to a jurisdiction where NML could seize it; Chapman Freeborn's provision of an alternative aircraft did not mean they were mixed-up in the non-payment of the judgment debt.
While NML clearly indicates that there are limitations on the Court's jurisdiction, the Hot Water case, along with UK case law, reminds us that anonymous or secretive opponents, including intellectual property infringers, can be dealt with as there is a method for obtaining crucial information held by a third party, notwithstanding that third party's apparent reliance on other, conflicting obligations.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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