In the age of online anonymity, individuals can easily post harmful and defamatory content without revealing their identity. These anonymous attacks—whether on social media, review sites, or via email—can inflict significant damage on personal and professional reputations. Fortunately, there is a legal tool to hold these individuals accountable: the Norwich Order.
What Is a Norwich Order?
Taking its name from the landmark case Norwich Pharmacal Co. v. Commissioners of Customs & Excise (1974), the original Norwich Order arose when a pharmaceutical company sought the identity of individuals secretly importing its patent-protected drug. The House of Lords required the customs authorities, who were innocently involved, to disclose the identity of the wrongdoer. Lord Reid famously stated:
“A person who gets mixed up in the tortious acts of others so as to facilitate their wrong-doing… 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 then, Canadian courts have adopted the Norwich Order as a legal remedy to assist victims of wrongdoing, including online defamation, fraud, and intellectual property violations. This tool enables victims to obtain critical information from an innocent third party—such as an internet service provider (ISP), social media platform, or bank—to identify the wrongdoer and seek justice.
When Might You Need a Norwich Order?
Norwich Orders are particularly useful when the identity of the wrongdoer is unknown. Examples include:
• Anonymous Social Media Posts: Harmful statements made under pseudonyms on platforms like Twitter, Reddit, or Instagram.
• Defamatory Emails: False and damaging claims sent from anonymous email accounts.
• Online Forums and Review Sites: Lies or attacks posted on forums or review platforms.
• Fraudulent Transactions: Cases where banks hold information about accounts involved in wrongful receipt or transfer of funds.
In such instances, third parties holding essential information may be compelled to disclose it, even when privacy policies or confidentiality obligations would normally prevent them from doing so.
How Do Courts Decide?
When faced with a Norwich Order application, Canadian courts consider several factors:
1. Evidence of a Bona Fide Claim
The applicant must demonstrate a valid, credible claim, such as defamation or fraud. For online defamation, this means showing the statements are false, harmful, and made without lawful justification.
2. Involvement of the Third Party
The third party must be innocently connected to the wrongful acts, such as an ISP hosting defamatory content or a bank handling disputed funds.
3. Necessity of the Information
The information sought must be critical to identifying the wrongdoer or supporting a legal claim, and the third party must be the only practicable source.
4. Interests of Justice
The court must balance the need for disclosure against the privacy rights of the individual and determine whether disclosure serves the broader interests of justice.
5. Proportionality
The court will assess whether the request is proportionate to the harm alleged and whether other options to obtain the information have been exhausted.
How Do Norwich Orders Work?
To obtain a Norwich Order, victims must apply to the court, presenting evidence and addressing the factors outlined above. If granted, the third party is legally compelled to disclose the requested information.
For example, in cases of fraud, banks may be ordered to release account details of individuals who received or transferred funds wrongfully. Courts have noted that without the bank’s involvement, the fraud could not have occurred, making their disclosure critical to identifying wrongdoers.
The Path Forward
Once the defamer or wrongdoer is identified, victims can take further legal action. This may include filing a defamation lawsuit, seeking damages, requesting the removal of defamatory content, or obtaining a public apology. Acting quickly is essential, as platforms and ISPs often retain user data for only a limited period.
Balancing Privacy and Justice
Norwich Orders are extraordinary remedies, reflecting a delicate balance between privacy and accountability. Courts grant them sparingly, ensuring the disclosure serves a legitimate purpose without unduly infringing on individual rights.
By unmasking anonymous wrongdoers, Norwich Orders provide an essential mechanism for restoring reputations, addressing fraudulent activity, and maintaining trust in both digital and financial spaces.
For individuals experiencing cyberbullying, online harassment, discrimination, or defamation, these orders serve as a crucial tool for holding anonymous wrongdoers accountable and safeguarding reputations.
DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.
If you would like legal advice, kindly contact the author(s) directly or the firm's Chief Operating Officer at pknapp@tmlawyers.com, or 204.988.0356.
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Simon Q.K. Garfinkel
Associatesgarfinkel@tmlawyers.com
Simon practices in the Advocacy, Litigation and Dispute Resolution department.
Peter Mueller
Partnerpmueller@tmlawyers.com
Peter is passionate about his work in the Labour & Employment Law field. He is regularly sought after by employers and human resource professionals for his litigation expertise as well as his counsel on day-to-day human resource matters. Peter’s advocacy experience includes acting as the lead negotiator for management in collective bargaining, defending wrongful dismissal lawsuits, and advising clients operating in both non-unionized and unionized workplaces dealing with grievances and arbitrations under collective agreements.