Norwich Pharmacal orders compel a respondent to disclose documents or information to the party making the application and can be an effective enforcement tool for rights holders. They are often used to against a non-party in order to help the applicant identify the proper defendants to an action prior to issuing a claim.
The High Court confirmed that the test for granting relief has not changed in light of the General Data Protection Regulation (GDPR).
The decision
The applicants in this case sought an order to require an internet service provider (ISP), to disclose the names and addresses of tens of thousands of its residential broadband subscribers who were accused of unlawfully downloading films.
The application ultimately failed due to fundamental defects in the factual and expert evidence that was submitted by the applicants. On the evidence before the Court, the applicants failed to demonstrate that they genuinely intended to use the information sought in order to seek redress (on the facts of the case, the ISP alleged that the applicants were part of a "money-making scheme"). However, the decision is of more general interest because it confirms that the test for granting relief (as set out in the Golden Eye cases1) has not changed in light of the GDPR.
In considering the impact of the GDPR, the judge considered whether the information in the applicants’ possession would constitute ‘personal data’ and, if so, whether on receipt of the information requested, the applicants would be ‘data recipients’ or ‘data controllers’.
As the IP addresses could ultimately be used to identify individuals, it would become ‘personal data’ in the applicants’ hands. However, the applicants would only constitute 'data recipients' and were thus not subject to the more onerous conditions imposed on 'data controllers' under the GDPR.
Commentary
Whilst the outcome of the case is specific to its facts, it confirms that the Court’s approach to granting Norwich Pharmacal orders has not changed in light of the GDPR.
In the right circumstances, Norwich Pharmacal relief is an effective tool for rights holders who are able to evidence a genuine intention to use the information sought in order to seek redress.
If you would like to discuss any of the issues raised in this article or would like further information, please contact Jeremy Dickerson, Emily Roberts or your usual contact in our intellectual property team.
1 The Golden Eye cases (first instance and appeal) were brought by Golden Eye and other claimants against Telefónica UK trading as O2 in 2012 for a similar Norwich Pharmacal order. The decisions, which set out the test for granting relief can be found here and here.