A Shot in The Dark? Claims Against “Persons Unknown”
A recent judgment in an area which might seem far removed from financial services throws a spotlight on how financial institutions deal with the increasing problem of anonymous online abuse campaigns.
Blackledge v Persons Unknown concerns a claim brought by “a senior and respected academic in the field of politics and ethics”, who was the “victim of a campaign of online abuse in the form a number of blog posts (in the form of articles) that have been posted on a Website by an unidentified defendant. These articles made false and seriously defamatory allegations of sexual misconduct by the claimant”.
“Persons unknown” claims will be familiar to many involved in finance disputes concerning, for example, payment frauds (such as interception of invoices, phishing or compromise of business emails). Financial institutions will also be familiar with Norwich Pharmacal and Banker’s Trust Orders – disclosure orders against third parties to help identify unknown fraudsters.
In Blackledge, the claim was for libel. The claimant was given permission to serve the claim by sending it to an email address on the blog. The defendants did not engage with the claim and the claimant got default judgment. The claimant was then granted damages of £70,000, an injunction and an order under section 13 of the Defamation Act 2013 requiring Google, as a third party host, to remove the website which hosted the relevant blog.
Damages in libel claims are rarely sufficient to justify the legal costs, particularly if the defendant is unknown, as there may be no immediate prospect of enforcement. The reason for pursuing a claim is usually for the claimant to restore their reputation, discourage repetition of defamatory statements, and to compel third parties to act to remove the offending material.
Whilst this may not be on the radar of most financial institutions, there is a major risk for them to become involved in defamation disputes, as claimant or defendant. In the last 18 months we have acted on a wide range of such disputes, from advising clients named in articles concerning global financial scandals (such as Wirecard and 1MDB), to advising a financial services client regarding libelous statements by a competitor, talking to a financial institution accused of libel in respect of a CIFAS entry, and advising a financial services start-up accused of libelous comments on social media.
Social media in particular provides the opportunity for almost anyone to target an organisation and its employees anonymously. The courts can sometimes assist to identify a “person unknown” – for example by a so-called “Spartacus Order”, for the Defendant to identify itself. If they ignore the order but are ultimately identified the failure to comply is criminal contempt of court.
If it is not possible to identify the Defendant, this can still be tackled through the courts. Given the inherent problems of an unknown defendant, this course of action requires careful consideration. For example, the court’s approach to the efforts it requires of the claimant to locate the defendant and serve the claim, and in particular to the remedies that would then be available, will depend to a large extent on the category of unknown person. They could be an anonymous person who is identifiable but whose names is not known, or an anonymous person who cannot even be identified – or even someone who is not known because they have yet to do anything wrong, but are highly likely to in the future.
There is a general rule of litigation that a claimant has to name the defendant – but the judgment often cited in support of that rule is now almost 100 years old, and does not reflect the potential for anonymous online defamation. The Blackledge judgment illustrates how the courts, in the age of social media, can help to tackle anonymous defamation and campaigns of online abuse.
  EWHC 1994 (QB)