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G and G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB)

Case date: 02/12/2009

Court: High Court

Area/s of law: Privacy

The Claimants applied for a Norwich Pharmacal order requiring the operator of Wikipedia to disclose the IP address of the person who had posted private information about them on the website. When granting the order, Tugendhat J gave guidance on the approach to be taken towards various procedural questions in privacy cases and injunction applications, particularly where an applicant seeks a derogation from the principle of open justice.

  1. Anonymity should not be granted to a respondent unless there are grounds for doing so. Such grounds may include the fact that naming the respondent may indirectly enable readers to identify the applicant.

  2. Hearings in private under CPR 39.2(3) and orders restricting public access to the court file under CPR 5.4C(4) are derogations from the principle of open justice, which should only be ordered when it is necessary and proportionate to do so. Those who apply for such orders should address them in their evidence or skeleton arguments and should ensure that the orders sought are limited in scope to what is required in the particular circumstances of the case.

  3. CPR 25 PD 5.1 requires that, where an injunction is applied for without notice, the order should provide for a return date for a further hearing at which the other party can be present. In some privacy cases it may be appropriate to dispense with this and grant an injunction “until further order” but advocates applying for a departure from the Practice Direction should draw this to the court’s attention and explain in evidence or their skeleton argument why the departure is sought.

  4. Any order for an injunction should normally include an undertaking by the applicant to provide expeditiously a full note of the hearing to any party that would be affected by the relief sought. Where the respondent is not present, the applicant should generally provide the respondent with a full note, whether or not the respondent asks for it.

  5. It may sometimes be appropriate to impose a restriction on reporting the fact that an order has been made (though no such restriction was sought here). Where such a restriction is included in order to prevent a wrongdoer from disclosing private information or destroying evidence before he has been properly served with the order, the prohibition on disclosing the fact of the injunction may normally be expected to expire once the alleged wrongdoer has been served with an injunction or at the return date.

Aidan Eardley

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