In the recent case of In Re Olsen [2022] NZHC 1781, the New Zealand High Court had to consider how to deal with a site impersonating a New Zealand lawyer and what powers were available to the lawyer and to the court to remedy the situation.
This decision highlights the risks involved with lawyers’ online presences as well as the particular approach in that case. It also begs the question of whether any of the UK’s different courts might take a similar approach to that adopted by the New Zealand High Court and whether there are additional routes that might be available to UK lawyers.
The facts of In Re Olsen
Mr Olsen is a criminal lawyer practising from Auckland and had his own website (https://www.jamesolsen.co.nz/) and chambers profile. In June 2022, he discovered another website (https://jamesolsennz.com/) which purported to be his website but had been set up without his knowledge (the imitation site). As the judgement of the High Court records (at [7]), this imitation website has been created by copying the career history of another barrister and then inserting Mr Olsen’s name and picture alongside those details. Contact details were provided on the imitation website though these were not those of Mr Olsen. It was thought that the purpose of the imitation website was to scam potential clients out of their money by requesting upfront payment for legal services. A fake LinkedIn profile had also been created for Mr Olsen, likely by the same person (as noted at [11] of the judgment).
Mr Olsen attempted to get help from the New Zealand Law Society and the New Zealand Police in taking down the imitation website. He also contacted the hosting company, an Arizona business called Name Silo LLC. The creator of the imitation website had used an anonymisation service called Privacy Guardian (https://www.privacyguardian.org/) to conceal their identity.
Mr Olsen had had some contact with Name Silo LLC who indicated they would take down the website if it was the subject of a US court order (see at [9]). There was also some urgency in that it was suggested that someone might already have been fooled by the website (at [8] of the judgment).
Mr Olsen therefore made an originating application to the High Court seeking to have the imitation website taken down. The imitation website’s owner did not appear and the application for the order requiring the taking down of the website was determined by Justice Simon Moore on the papers.
The High Court’s decision
The first point that Moore J considered was whether there was jurisdiction to take down the imitation website under provisions of the New Zealand statute regulating the legal profession: the Lawyers and Conveyances Act 2006 (at [13] onwards). That statute contained a power to grant injunctions to stop a person from engaging in conduct that breached various provisions of the act such as persons misinterpreting themselves as a lawyer or persons providing legal services improperly. Justice Moore considered, however, that those provisions did not address the situation where someone was seeking to impersonate a genuine lawyer rather than misleadingly holding themselves out as such in their own right (at [16]).
Instead, Moore J held that the matter was one where the High Court was able to rely on its inherent jurisdiction to make an order for the taking down of the imitation website. Drawing an analogy with contempt, Moore J held that the impersonation of a legal representative and of an officer of the court could have damaging consequences for the administration of justice. Potential clients and other parties might send in confidential information wrongly believing the fake contact details to be true. Such inadvertent disclosure and the potential for members of the public to be misled by the imitation site were to be seen as a threat to the administration of the justice and confidence in the legal profession (at [19]).
Having found there was jurisdiction to make such an order, Moore J decided that the facts of the case were wholly supportive of one being made. This was due to the obvious attempt at fraud, the imitation website’s obviously misleading nature, the fact that all reasonable steps had been taken by Mr Olsen and the absence of any countervailing public interest (at [20] – [25]). In those circumstances, Moore J made an order for the take-down of the imitation website with leave reserved to Mr Olsen to apply for any further orders required for its implementation (at [26]). This appears to have been intended to address ancillary issues such as requesting that search providers delist the imitation website.
Reflections on the decision and other possible options for action on impersonation
It is now the case that most lawyers will have a significant web presence. This can be incredibly beneficial in terms of publicising their work and providing an easy means for potential clients to quickly contact practitioners. However, it also bring risks as recent experiences with spear-phishing illustrate. This case of wholesale impersonation, as happened to Mr Olsen, presents another such obvious risk and one with a more public-facing set of concerns. In this case, two different lawyers’ websites were mined to provide the content used in the imitation website. It is equally easy, however, to imagine a scenario in which an entire firm’s website could be scraped for content to enable the building of a clone version designed to confuse or mislead.
Greater of use of direct access schemes for the bar, the increased practice in some areas of law for asking for fees to be paid up front and held on account, and the fact that some firm websites already have payment portals built into them may also make such impersonation schemes a more valuable avenue for fraud.
The New Zealand High Court’s use of the inherent jurisdiction to make an order against the website hosting provider is an interesting and novel approach to this problem. It may be something that courts in the various UK jurisdictions are willing to consider given the public interest concerns highlighted by Moore J in relation to the impersonation of lawyers. There may, however, be other legal avenues that could be relied on for those seeking to take down such sites.
In this case, the use of photos and text would also suggest that either Mr Olsen or the author of the other legal website would have a claim in copyright for the unauthorised use of copyright material. This is because ownership of the material would reside in the lawyers either as authors (likely the case for the text) or assignees (in the case of the photos). Where terms of service/use are included in any lawyers’ website then those might prove an alternative contractual basis for preventing misuse of website content in any fake website.
Nether defamation, nor the law relating to confidential/private information nor data protection law would seem to provide an obvious ground here given the ‘true’ nature of the information and its open publication. The tort and the delict (Scotland) of fraud may come somewhat closer but pose some difficulties in that the person likely had to suffer harm in such cases may be best viewed as any deceived clients rather than the lawyers themselves in the first instance. That being said, the possibility of harm to potential clients or to firms themselves (through potential lost business) might provide a sufficient basis for interim relief, particularly if such a step is not actively opposed by the creator of a fake site.
Whether the courts in the UK’s different jurisdictions would be willing to use the regulatory regimes for lawyers in a more expansive manner than the New Zealand High Court is likely to turn on the different acts governing the legal professions. Of course, the courts of each UK jurisdiction also possess an inherent jurisdiction to grant injunctions and interdicts (Scotland) and have sometimes demonstrated that they are willing to use it in novel ways against websites (see, for instance, Cartier International AG & Others -v- British Sky Broadcasting & Others [2016] EWCA Civ 658).
In short, this type of impersonation is one that UK based lawyers will need to be alive to, particularly if it can happen in a smaller jurisdiction such as New Zealand. The lack of a direct means of dealing with impersonation per se ma mean that novel solutions such as that favoured by the New Zealand High Court will provide a means of taking down such fake websites.
Fergus Whyte is an Advocate who called to the Scottish Bar in 2020. He primarily practices in civil and commercial litigation including in media, information and technology matters. He is an enrolled (and currently practising) barrister and solicitor of the High Court of New Zealand where he previously practised in civil litigation for a number of years.
