This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.
The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.
The Norwich Case
Norwich Pharmacal Co v Customs and Excise Commissioners AC 133, 175, HL
From the ‘Cambridge Law Journal’:
No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.
This case deals with disclosure of private information: when and how.
In Norwich Pharmacal Co. v Customs and Excise Commissioners  AC 133, the owner of a patent knew that infringing goods were entering the UK, but could not ascertain their identity. The Commissioners, in the course of performing their duties, had information that would identify the imports. Also, they had unknowingly played a part in facilitating importation of infringing goods. The House of Lords found that where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers.
In other words, the ‘disclosure’ of private information by a witness is not ‘automatic’ but some threshold of proof has to be met to satisfy a judge that the request is reasonable and for the information to be released.
However, if the person who holds the information sought is ‘an accomplice’ (in some way – knowingly or not), if that person is facilitating the ‘wrongdoing’, then they are compelled to release all relevant information right away.
This became important during the ‘Warman v FD/internet privacy’ case, because Free Dominion and its administrators, Connie and Mark Fournier, were named as co-defendants in the action by Mr. Warman.
The question, in my never-humble, not-legally-trained, opinion is whether the Fourniers are simply witnesses, or if they are also culpable in the defamation.
If they are simply witnesses who hold private information, then they cannot be compelled to release it until a judge is satisfied there is a ‘prima facie’ – or at least ‘bona fide’ case to do so. (Yes, there was much back-and-forth as to which threshold, ‘bona fide’ or ‘prima facie’ ought to be used.)
If they are also partially guilty, then it is their duty to turn all information they might have over, right away.
That is the relevance of the Norwich precedent to this case.