Patel v Unite – order for investigation of deleted Internet forum

Here is an interesting judgment, Patel v UNITE the Union [2012] EWHC 92 (QB) (27 January 2012), which Professor Dominic Regan has pointed me to. The target of postings on a union Internet forum alleges defamation and harassment. The union claims that the forum has been deleted and that they cannot identify those who made the postings. What help will the court give to the alleged victim in his efforts to identify those who wrote about him?

The story, put as briefly as possible, is that anonymous union members made observations about Mr Patel which give rise to potential causes of action against them. He claims both that the postings amount to actionable libels and, in the alternative, that he has a cause of action under the Protection from Harassment Act 1997.  The forum had warned its members that their true identities might be disclosed to third parties, subject to relevant data protection and privacy rights.

Patel obtained a court order against Unite requiring them to make a reasonable search for the information and to serve a witness statement. Unite claimed that the information was no longer available, and resisted an order for examination of the relevant servers on grounds which included the data protection and privacy rights not only of those who made the postings but of everyone else who had used the forum.

The judge concluded that he had power to make such an order on the basis that, whilst identification of the alleged wrongdoers may not be achieved as a result, it certainly could not be achieved without the order. Protection against intrusiveness would be achieved by the appointment of an independent expert agreed on by the parties who would provide nothing more to Mr Patel then “information which identifies those responsible for the posts complained or which explains why (if that be the case) they cannot be identified”.

This, said the judge, met the requirements both of proportionality and of protection of privacy and data protection rights.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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