Patel v UNITE the Union

This application is made by the Claimant ('Mr Patel') in Part 8 proceedings for Norwich Pharmacal relief against Unite, the trade union, in respect of postings on the BASSA forum, which is (or was) an internet forum owned and operated by Unite. BASSA, the British Airline Steward and Stewardesses Association, is the largest branch of Unite. Mr Patel is a British Airways aircraft captain, an elected representative of members of BALPA, the British Airlines Pilots Association, and an elected member of the BA Company Council.

The background to the application is that Mr Patel claims to have been the victim of a campaign of defamatory allegations, and of harassment, by postings on the BASSA forum. The campaign seems to stem from his having been identified as volunteer cabin crew (VCC) before the threatened industrial action by cabin crew in 2010. In consequence, and in common with other pilots identified as having undergone VCC training, he was subjected to threats and harassment by BASSA members, both on the internet and elsewhere, and was blamed in official statements (he maintains falsely) by BASSA itself for a number of instances of behaviour hostile to its interests. He believed that the widespread publicity given to the allegations against him was responsible for the abusive and defamatory postings which he complains were published on the BASSA forum.

The postings complained of, which appeared in seven threads between 26^th January and 25^th March 2011, made allegations such that Mr Patel was unsafe to fly with, had lied, was unfit to be a captain, was guilty of illegal and erratic behaviour, was responsible for the dismissal of innocent cabin crew, and was involved in police corruption. Mr Patel's primary position is that the postings amount to actionable libels, but he also raises an alternative cause of action under the Protection from Harassment Act 1997. It is one of the less uplifting aspects of internet usage that those who make unpleasant or offensive observations about others tend to lack the courage to speak out under their own names, but prefer instead to hide behind false noms de guerre; and without disclosure of their true identities, Mr Patel cannot bring civil or disciplinary proceedings against those responsible.

Unite operated the BASSA forum, but insists that the postings were made by individuals without its consent or authorisation. Indeed, the terms and conditions of the BASSA website expressly prohibited the posting of defamatory material, and warned users that their true identities might be disclosed to third parties on request. BASSA reserved the right to disclose the true identities of users to third parties, if requested, subject to the user's data protection and privacy rights. Unite took the forum offline on about 10^th June 2011 (according to Mr Patel), or 29^th July 2011 (according to Unite), and published a unilateral statement which explained that many of the allegations about Mr Patel's conduct during the industrial dispute were unfounded, but did not respond to Mr Patel's requests for assistance in identifying the 42 anonymous users of the forum who were responsible for the posts complained of. Instead, he maintains, two of his letters of complaint were published on the BASSA forum by the branch secretary, Mr Duncan Holley, despite his express request that there should be no publication.

In consequence, Mr Patel applied to Lindblom J on 30^th September 2011 for a Norwich Pharmacal order. An order was duly made which required Unite to carry out a reasonable search to locate the information sought, and to make and serve on Mr Patel a witness statement stating whether the information was now in its control, and to the extent that it had been but was no longer in its control, what had happened to it. The order also required Unite to provide for inspection, by way of electronic copies, the identities, home addresses and IP addresses of the persons who had used the usernames listed in the schedule to the order to make the posts complained of on the BASSA forum. In the normal way, Mr Patel was ordered to pay Unite's costs of the application and of compliance with the order.

In answer to the order, Duncan Holley, branch secretary of BASSA, made a witness statement dated 17^th October 2011. He deposes that he was 'formally' (he may perhaps mean 'formerly') responsible for the BASSA internet forum, which on his evidence was taken down on 29^th July 2011, but is not himself an IT expert. He made the decision to take the forum down, to prevent further postings. In fact (on Mr Patel's undisputed evidence) it had already been taken down for an unspecified period on 10^th June, but it was Mr Holley’s decision to instruct Mark Everard, a union employee, to arrange with the website designer and provider, System Serve Ltd, to close it down permanently.

Following Lindblom J's order, Mr Holley was in touch with a Mr Bob Dooley of System Serve Ltd to see what information could be retrieved. He says that the position is that System Serve took a back up of the forum as it existed on 13^th January 2011 when the server was changed. When the forum was operational, the administrators could identify the real names of those currently using particular usernames by clicking on those usernames, and it was possible to conduct searches by reference to individual usernames. That can still be done on the 13^th January 2011 back up copy, but of course will only provide the identity of a member using the username as at that date. The difficulty is that members could and apparently did swap or change usernames as they wished, in order to conceal their identities from BA, and Mr Holley explains that it is not possible to identify from the back up copy which user was using a particular username at the time when a particular posting was made.

However, Mr Holley ordered a search of the back up copy, to see if the 42 usernames referred to in the order of Lindblom J were in use on 13^th January 2011. Some were, and they are listed at appendix A to his statement, with their addresses as kept on the current BASSA database. He says that it is not possible to identify their IP addresses from the back up copy.

He also ordered a search of the current BASSA database to find out whether the usernames identified in the court order are still in use. On his account, it is impossible to tell when a member started using a particular username, or whether the member was using that username at the time when the posts complained of were made, or to identify any previous username of that member, or the date when a username was changed or swapped by a member. He lists at appendix B to his statement the real names and addresses of those who were using the relevant usernames as at 16^th October 2010, when the search was carried out.

According to Mr Holley, BASSA's domain provider, Fluent Ltd, can no longer access any of the contents of or information from the deleted forum, and they took no back up copy. That being so, it is not, he says, possible to identify the members using particular usernames at the times when the postings complained of were made.

It might be thought curious that BASSA should not merely have taken the forum offline but also have deleted it without taking a back up copy, but that is Mr Holley's evidence. So while it is possible to tell who was using the relevant usernames as at 13^th January and at 16^th October 2011, it is not possible (given the apparent tendency of BASSA members to change, and also – perhaps more unexpectedly – to swap, usernames from time to time) to be sure that the person using a particular username on either or both of those dates was the same person as was using it between 26^th January and 25^th March 2011, when the offending posts were made. In other words, he says, it is not possible to comply with the order by providing with any certainty the identities, home addresses or IP addresses of those who used any of the relevant usernames to make the posts complained of.

Following service of Mr Holley's witness statement, Mr Patel’s solicitors sought confirmation that Unite had at least retained copies of the seven threads containing the posts complained of. Unite's initial stance (letter, 20^th October 2011) was that it could not locate the seven threads.

Mr Patel did not accept that the order could not be complied with, so issued his present application on 16^th November 2011. By that application, he seeks a further witness statement stating whether the information sought was in Unite's control, and if not, (in short) what had become of it and what steps Unite had taken to discover it. In the light of Mr Everard's witness statement, to which I refer below, that part of the application is not pursued. What is pursued is an application that in the event of Unite not being able to provide some or all of the information sought, an independent expert should be given access to all available copies of the BASSA forum database and permitted to make an image of the database and/or such other electronic copy of data on the database (existing or deleted) as the expert might consider necessary in order to prepare a report limited to the identification of the information sought. The grounds of the application are stated to be that Unite failed to comply with the order of Lindblom J by carrying out a reasonable search, and that although Mr Patel had supplied Unite with sufficient information to locate and disclose the information requested, or to explain what had happened to it, Unite unreasonably failed to provide him with that information or explanation.

In support of this application Mr Patel has filed a second witness statement. He takes issue with Mr Holley's account of the circumstances in which the forum was taken down, pointing out that he had been told by a senior Unite staff member, Andrew Murray, that the forum had been suspended before 11^th June 2011, and exhibiting a statement posted by BASSA on 10^th June 2011 to the effect that the forum had been closed for an unspecified period. Moreover, he deposes that as a condition to entering into mediation with Unite he asked on 15^th May 2011 for the posts to be removed from view but to be preserved, and he was told this had been done; and a draft compromise agreement prepared during the mediation process included a term whereby Unite would post a letter in agreed terms to the home of each of the individuals who, under 42 different usernames, had posted the material complained of. Unite had made clear throughout the mediation process that they could identify the people involved and communicate with them. The mediation ultimately broke down for unrelated reasons. However, Mr Patel is understandably perplexed that Unite have been unable since the making of Lindblom J's order to identify the same individuals.

As far as the technicalities are concerned, Mr Patel's position is that Unite has failed to search for the relevant information. He consulted a technical expert who informed him that the BASSA forum was run on open source software called phpBB version 3 and used an open source database called mySQL. Both software products are widely used and their structure and mode of operation are well understood. According to the expert, it is a simple matter to identify the people who have made specific posts. In order to access the BASSA website (as opposed to the BASSA forum within it), users have to register, giving such details as full name, address and BA staff number. The system automatically assigns that individual a unique 'user ID', which is used by the system if the individual uses the forum, and which cannot be changed. User ID information is stored in the forum database in a table known as phpBB_users. Once logged on to the forum, a user may choose a username, but whatever username is employed, and however often it is changed, the system recognises them by their unique user ID, and every post made by them is recorded in the database against that user ID. Moreover, each post is allocated a 'post ID', which (with the user ID) is stored in the database table known as phpBB_posts. All backups of the forum would then include both tables, making it a simple matter to identify the specific user responsible for a post by reference to user ID and/or post ID. Indeed, Mr Patel has himself been able, using HTML copies of the relevant pages from the BASSA forum, to identify the post ID of every post of which he complained, and 13 of the 42 user IDs of the persons whose identities he seeks. His evidence also shows that individual posters can be identified by using the time and date of each post (which he knows) and the database entry post_time, which is a date and time stamp (also included in the database table phpBB_posts) which uniquely identifies a post and thus the person posting it. Moreover, whether or not the seven threads had been retained, the data would still exist on the physical server on which the forum was hosted, and a forensic image of those data could be made and examined, to reveal the relevant information.

Given Mr Holley's admitted lack of expertise in IT matters, Mr Patel's solicitors wrote to Unite on 20^th October 2011 enclosing a guide which explained how the user IDs could be identified. Mr Patel also obtained and served on Unite's solicitors a report from his expert, Jan Collie, who is a computer forensics specialist with experience of uncovering hidden data. She confirmed that the necessary information should be accessible by interrogating the database which underlay the BASSA forum, and which would have been backed up, if only for emergency purposes, and added that server logs kept by the host system would also help to establish what was happening at any particular time. However, in order properly to assess what records should have been kept, it would be necessary to understand the IT architecture involved: there could be dozens of different configurations, all of which might yield different possibilities.

Mr Patel's further application was listed for hearing before Master Eastman on 15^th December 2011, when the Master released it to be heard by a judge. On 13^th December, Mark Everard, the BASSA representative who looks after the day to day running of the BASSA website, made a witness statement. He is the link between System Serve (which runs the website) and the union officials who use it daily. He has what he describes as 'limited technical expertise' but a general knowledge of the workings of the website and forum. He asked Bob Dooley of System Serve to run the search suggested by Mr Patel's solicitors in accordance with the guide which they provided. Mr Dooley's answer was that it was not possible: the instruction required as a first step that a post must be identified in order to identify the post ID. That could not be done, because the posts had been deleted. In addition, Mr Dooley carried out his own search of the BASSA database, using text culled from each of the posts complained of. According to Mr Everard, none of the relevant text was located. Unite informed Mr Patel's solicitors of this by letter dated 29^th November and enclosed a copy of the search. It is interesting to note that although the search did not throw up any of the posts complained of, it did produce a certain amount of material from other posts which had been up on the BASSA forum. That may be of some significance.

When Mr Patel's solicitors replied on 30^th November seeking whether the information had been deleted and if so by whom, and making the point that even if the posts had been deleted they should still be recoverable from the server and server logs, Mr Everard put their points to Mr Dooley, who told him that the posts had indeed been deleted from the database tables and were not recoverable from the server or server logs because the website provider did not employ server logs to record every piece of activity which occurred on the database: that is to say, a post would be recorded on the database, but the fact that it had been recorded on the database would not be stored separately in a server log. Similarly, when a post is deleted, it would be deleted from the database but the fact of the deletion would not be recorded in a server log. Mr Dooley could not say who had deleted the posts as no separate log was kept of when and who carried out deletions. It is relevant to note that the deletion of the posts from the database tables was first revealed to Mr Patel's solicitors by Unite's solicitors on 8^th December, even though Lindblom J's order had required Unite to serve a witness statement almost two months earlier which explained what had happened to any information no longer in their control.

On 30^th November, Mr Patel's solicitors invited Unite to agree to the appointment of a forensic expert at Mr Patel's expense to examine the deleted and undeleted data. That invitation was declined. However, a meeting between experts was proposed with a view to resolving the question of whether it is even now possible to reconstruct some or all of the missing material, but it is unfortunate, given that neither Mr Holley nor Mr Everard have technical expertise in IT matters and given the less than complete picture of the technical possibilities now before the court, that Mr Dooley in the event declined to take part.

On 9^th December, Mr Patel's solicitors responded to the news that the postings had been deleted from the server tables by making two points in particular. One was that the fact that Mr Dooley's text search threw up some text from postings before and after the posts complained of showed that the database tables must be intact, and the other was that Unite had given no details of the results of any searches carried out against fourteen user IDs which Mr Patel had extracted from HTML pages saved from the original forum postings. They enclosed the relevant user IDs, and made the point that each user ID was unique to an individual registered forum user, so that identification of the user should be straightforward. They stated that, according to their experts, it was highly likely that any deleted posting would still be recoverable by carrying out a brief forensic search of the Unite server, and that in any event only a forensic search would establish what was and what was not recoverable. Mr Everard did not respond to these contentions in his witness statement.

The only other evidence before the court is a witness statement from Howard Beckett, the Director of Legal and Affiliated Services at Unite, which appears to be dated 19^th January, the day before the hearing of Mr Patel's application. This does not provide any further assistance with the technical issues, but advances the thesis that Mr Patel has no intention of pursuing legal action but instead is using the proceedings to present Unite as acquiescing in the disclosure of members' details and to pursue 'personal agendas at the workplace', and expresses the concern that Mr Patel is 'unable to move on' from BA's industrial action against BA. Mr Beckett refers to an incident in which Mr Patel spoke to one of those whose names he had obtained as a result of the witness statement of Mr Holley in terms which upset her, which on the face of it would not be a proper use of information provided pursuant to the order of Lindblom J, and he cites postings on Mr Patel's own blog, not written by him but which he could remove if he chose, which refer in offensive terms to BASSA representatives, and allegedly 'sexist' and inflammatory postings both on his own Facebook page and (under pseudonyms, where his authorship is not established) on a number of forums.

The state of the evidence as regards the existence and accessibility of the information sought by Mr Patel appears therefore to be as follows. The forum has not merely been taken offline but actually deleted from the BASSA database; BASSA can no longer access any of the contents of or information from the deleted forum; there is no back up copy; the seven threads containing the offending posts have been deleted, presumably as part of the deletion of the forum as a whole; and the posts have also been deleted from the database tables and are not recoverable from the server or server logs because the website provider does not employ server logs to record every piece of activity which occurred on the database. Moreover, it appears from the substantial failure of Mr Dooley's text search that the deletion of the forum has not simply (as is usual with data deletion) removed the address of the data while leaving the data on the disc until overwritten by other data, but actually removed the underlying data, or much of it.

In the course of the hearing, Mr Edwards made clear that the forum was permanently deleted from the BASSA database when it was taken down. That database, which contains the details of members, was searched by Mr Dooley. Mr Edwards accepted that if a 'ghost' copy of the relevant data existed (that is to say, a copy deleted in the normal fashion so as to remove its address but to leave the underlying data on the disc) then it would fall within the existing order. His position is that Mr Patel is now seeking an intrusive order which would go beyond the existing order of Lindblom J by permitting an independent expert to have access to Unite's entire database and back-up servers, an order which should not be made unless there is reason to suppose that the statements of Mr Holley and Mr Everard are untruthful (which is not alleged) or inaccurate.

Mr Patel's position, as Ms Jolliffe explained it, is that he does not now dispute that the threads have been deleted. Nor does he assert that Mr Everard or Mr Dooley have been untruthful. Rather, his stance is that it is apparent that Unite lacks the technical ability to comply with Lindblom J's order. Ms Jolliffe fastens on to the distinction, which she describes as crucial, between the assertion in Thompsons' letter of 8^th December 2011 that the information sought had been deleted and was not recoverable, and Mr Everard's witness statement, which stated only that the 'postings' had been deleted and were not recoverable. The importance of the distinction is that the fact that the posts have been deleted does not mean that the information has been deleted or is irrecoverable, and Ms Jolliffe argues that the central matters of dispute are whether all data on the database which could identify the information have been irretrievably deleted, and whether the relevant searches have been carried out. She submits that for the reasons stated in Mr Patel's second witness statement, the technical steps required to identify the information are straightforward and cheap. Mr Patel’s account of the workings of the BASSA forum and database is not disputed.

Mr Patel himself has been able to identify the post ID for each post complained of, and has supplied them to Unite. That being so, Ms Jolliffe argues, Unite's reliance on the importance of the deletion of the existing posts is misplaced, because Unite need only search for the user ID associated with that post ID and cross-reference it with the phpBB_users table. Indeed, in the case of the 14 user IDs which Mr Patel has already discovered, all that has to be done is to identify the user ID in the phpBB_users table. That being so, she maintains, forensic examination of the tables is likely to identify some, if not all, of the information sought. If the tables have been deleted, they are likely to be recoverable.

Ms Jolliffe criticises the searches carried out by Unite for their inadequacy, as she describes it. She points to Mr Dooley's claim, as explained by Mr Everard at paragraph 7 of his witness statement, that he could not run the requested search because the posts had been deleted: this misses the point that the post IDs had been provided to Unite, so the posts themselves were not required. She rightly observes that neither the witness statements nor the correspondence indicate whether Unite has in fact checked the post IDs, or the fourteen user IDs, or the post times, against the relevant database tables. Indeed, there is no evidence that the tables have been deleted or are irretrievable. Moreover, it is noteworthy that while Mr Dooley's text search of the database did not produce any results from the posts complained of, thus suggesting that they had been irretrievably deleted, it did produce some results showing other posts, which is a very puzzling outcome if the posts were all deleted.

It seems to me that Unite's evidence of compliance with Lindblom J's order is in a very unsatisfactory state. It is not the fault of Mr Holley or Mr Everard that they do not themselves understand the technicalities of the BASSA website, or that they have to rely on what they are told by Mr Dooley, and I do not suggest that they have not done their best, but in the circumstances I am far from confident that Unite has in fact succeeded in carrying out the search which Lindblom J ordered. Indeed, it is not even suggested by Unite that Mr Dooley has any expertise in the retrieval of deleted computer data, only that he works for System Serve, the website provider. Mr Edwards more than once describes him as a ' computer expert' or an 'independent computer expert' in his skeleton argument, but there is no evidence that this is so, and Mr Dooley's reluctance to discuss the technical issues at the proposed meeting with Jan Collie does not inspire confidence. Rather, there is reason to believe that Mr Patel has supplied Unite with information which may well enable the information sought to be provided, and that his information has not yet been properly followed up. What is to be done about this?

The order sought by Mr Patel is undoubtedly intrusive. It would require Unite to allow an independent expert access to their database and to permit that expert to make an image or some other copy of the database with a view to preparation of a report limited to identification of the information sought. The first question is whether there is any power to make such an order. Mr Edwards conceded that the court has the power, while arguing that it would be neither necessary not proportionate to exercise it. No domestic authorities on the point have been brought to my attention, and it appears that no mention is made of such a step in CPR 31BPD, which governs electronic disclosure, but I was shown a passage at paragraph 9.29 of Matthews & Malek on Disclosure (Sweet & Maxwell, 2007), which asserts that the court has the power to order inspection of a database and to give access to a party's computer or to direct the provision of an imaged version of a database, but that it will only do so if it can be shown to be necessary and proportionate. The editors suggest that where it is not appropriate to allow a party to have access to the material, the court may permit inspection and interrogation of the computer system by an independent expert, who would be subject to undertakings necessary to protect the interests of the disclosing party. That, of course, is what is sought here. In my judgment, it must be open to the court, where there is reason to believe that a previous order of the court has not been fully complied with for reasons of lack of technical understanding, to make such further order as is necessary and proportionate to enable and assist the respondent to comply and to ensure that the earlier order is not frustrated by an innocent failure to understand the technical issues, which in this case concern the scope for retrieval of the deleted data. As I say, Mr Edwards did not seek to argue otherwise.

Mr Edwards argues that in the light of the matters canvassed in Mr Beckett's witness statement, Mr Patel did not come to the court with clean hands. If Mr Patel has indeed been behaving in the manner imputed to him, then such behaviour may well have been foolish, particularly against the backdrop of the bullying and intimidation which he himself had to endure; but I do not find anything in Mr Beckett's witness statement which assists me in determining the outcome of the present application, and in particular I do not find that Mr Patel's behaviour disqualifies him from seeking the assistance of the court to obtain the information to which Lindblom J's order was directed, but it is a factor which I take into account in considering how to exercise my discretion. Mr Edwards also argues that the fact that Mr Patel has apparently not written to the individuals identified in Mr Holley’s Appendices A and B as having used particular usernames associated with offending posts, to ask whether they were the authors, is a ground for refusal of the order now sought. That seems to me an unrealistic course to expect Mr Patel to take, given the denials which would surely follow in the absence of conclusive evidence against the individuals concerned; and the fact that he has not taken that course is not, in my judgment, a reason to refuse his application.

More cogently, Mr Edwards insists that Unite could not simply be neutral when faced with an application for an intrusive order which affects the personal data and (he says) the sensitive personal data of union members, who undoubtedly have rights to be protected both under Article 8 of the European Convention and under the Data Protection Act 1998. He argues that since the application seeks information as to the commission or alleged commission of an offence (harassment contrary to s2, Protection from Harassment Act 1997), all of the information sought constitutes sensitive personal data within s2 of the Data Protection Act. Whether or not that is right, the definition of sensitive personal data also embraces information about trade union membership, which would certainly be disclosed. That said, the information involved is not of the most sensitive kind: we are not talking here about information relating to religious beliefs, or sexual life, or medical matters. Mr Edwards urges that the interests of the claimant in seeking, in the face of the evidence, to have another expert double-check the work of Unite's Mr Dooley, should not outweigh the interests of the thousands of BASSA members, including of course a very substantial number who will not even arguably have committed any tort against the claimant, who are entitled to protection from intrusion into their sensitive personal data. Of course, there is no dispute that sensitive computer data may have to be disclosed pursuant to a court order (see in particular s35 of the Data Protection Act). The question is whether it is proportionate for the court to make an order which requires disclosure of such data. In The Rugby Football Union v Viagogo Ltd [2011] EWCA Civ 1585, the Court of Appeal had to consider whether it was proper to make a Norwich Pharmacal order which would entail the disclosure of personal data contrary to the Data Protection Directive and the 1998 Act, and held that it would generally be proportionate to make an order revealing the identity of arguable wrongdoers. Longmore LJ stated at [28] that there could be no reasonable expectation of privacy in respect of data which reveal such arguable wrongs, and referred to the fact that the respondent's own conditions of business point out to their customers that their may be circumstances in which their personal data will be passed on to others. He regarded the requirement of disclosure of a limited amount of personal data as proportionate because there was no other way in which arguable wrongdoing could be exposed. 'In this case, as in many other Norwich Pharmacal cases, necessity and proportionality may go hand in hand'.

Here, an order for Norwich Pharmacal disclosure has already been made, which obliged Unite to carry out a search for the information which Mr Patel needs. There is reason to suppose that the search has not been thoroughly carried out, or has not been carried out with the degree of expertise which is necessary to ensure that it is effectively done. As in the RFU case, it is relevant to take into account that the terms of conditions of the BASSA website warn members that BASSA reserves the right to disclose their true identities and other information, if requested by a third party, albeit subject to their rights of privacy and of data protection. Moreover, without an order of the kind sought, it will certainly not be possible to identify those responsible for the arguable wrongs of which Mr Patel complains. I accept that even with such an order, their identification may not be achieved, but it certainly cannot be done without one. It seems to me that the intrusiveness of the order proposed, particularly as regards innocent members who have not posted any of the material complained of, can be significantly reduced by ordering that the necessary work should be carried out by an independent expert appointed jointly by the parties, and that the expert should give suitable undertakings, the detail of which can be canvassed in argument, to the effect that he should not disclose to Mr Patel or to any other person any information obtained in the course of his copying and examination of the BASSA database except information which identifies those responsible for the posts complained of or which explains why (if that be the case) they cannot be identified. On that basis, the order will in my judgment satisfy the requirement of proportionality, and the need to respect so far as possible the privacy and data protection rights of BASSA members. Of course, Unite's costs of compliance with this order, and the costs of instructing the expert, will have to be borne by Mr Patel.