CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814)

Royal Courts of Justice (ValP) / CC BY-SA 2.0

If you do not know what the outside of the Royal Courts of Justice on the Strand in London looks like, the picture above may help.  However, we expect that if you watch any UK television news, you will also see plenty of TV reporters do pieces to camera from outside the court.  This will particularly be the case around the date of this post because the case of CTB v. Twitter Inc. and Persons Unknown (Case No. HQ11X01814) is inevitably going to receive plenty of attention.  It has all the topical ingredients that media reporters could wish for: the case has been brought by a Premier League professional footballer (at present known merely as CTB); it references super-injunctions and involves the Llanelli glamour model, Imogen Thomas (plenty of scope for gratuitous library video footage).

However, whilst not denying these interesting elements, what we are interested in is the attempt to bring an action in the High Court in England (& Wales) against “Twitter, Inc. and Persons Unknown”.  Some of the background to the case is described in our previous post: Footballer CTB is suing Twitter.

It appears that as the claim form has yet to be served, its details have not yet been made public.

There are a number of questions that arise from the case.  How can CTB bring a claim against “Persons Unknown”.  Given that these are likely to be anonymous Twitterers, CTB cannot serve upon them any statement of claim or injunction.  In circumstances such as these, CTB could seek to obtain a Norwich Pharmacal Order in respect of each of the unknown persons.  A Norwich Pharmacal Order requires a third party to disclose the information that would enable unknown persons to be identified for the purposes of civil proveedings.  However, this is not appropriate in these circumstances as the person with the relevant identity information, Twitter, is outside of the jurisdiction.

Fortunately for CTB, there is a procedure to enable him to seek the Court’s permission to serve the claim form and orders out of the jurisdiction (Section IV of Part 6 of the Civil Procedure Rules).  The method for service is likely to be one of the methods permitted by the Hague Convention of 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, to which the UK and the United States of America are members.  It remains to be seen that even if these steps are taken, and Twitter is successfully serviced with the statement of claim or any Norwich Pharmacal Orders, whether Twitter would take any notice of them and submit to the jurisdiction of the High Court.

The next question concerns the nature of the statement of claim.  We speculate that it must be an application to commit to prison the persons, including Twitter, for aiding and abetting the breach of the original injunction against The Sun (NGN Limited) and Imogen Thomas (and thus being themselves in contempt of court).  Rather than prison, the disobedient parties can be subject to an unlimited fine and the court can order any act to be done at their expense. Until the claim form is in the public domain, we cannot be sure.  We are not aware at this point of any ISPs or social media platforms being the subject of this type of application, so we cannot say whether the High Court would be persuaded by the so-called “mere conduit” defence that Twitter could raise.  Strictly, this defence arises under the Electronic Commerce (EC Directive) Regulations 2002 (Regulation 17), enabling service providers of an information society service to evade liability for the content of information passing through their networks over which they have no control. Whilst the terms of the regulation give service providers a defence so that they “shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction”, we believe this has not been raised as a defence in contempt of court proceedings.

Cohen -v- Google not a skank decision

New York Supreme Court by Djmutex

New York Supreme Court

There has been a degree of consternation in the blogging community about the New York Supreme Court decision in the Liskula Cohen -v- Google, Inc “skank” case, given that it requires Google to disclose the identity of a blogger, subsequently revealed to be Rosemary Port.   The decision has even been described in some UK press as a precedent-setting case.

This is a surprise, given that the Supreme Court appears merely to have applied the facts of the case to Civil Procedure Law Rules 3102(c).  Having determined that calling Miss Cohen a “skank” and “ho” etc., together with posting sexually provocative photographs of her, amounted to actionable defamation, the Court then applied the rule to enable Miss Cohen to obtain a court order “to identify the proper defendant with respect to a known cause of action”.

In the English Civil Procedure Rules there is no direct equivalent of the New York CPLR 3102(c), at least as a means to identify an unknown defendant.  Instead, the court does have jurusduction following a House of Lords’ decision in Norwich Pharmacal -v- Commissioners of Customs & Excise [1974] AC 133, using what is now commonly referred to as a “Norwich Pharmacal order”.   Norwich Pharmacal orders have been made in similar circumstances, i.e. to obtain the account details from internet service providers of alleged authors of defamatory material on the internet (see Totalise plc -v- The Motley Fool Ltd [2001] EWCA Civ 1897, Keith-Smith -v- Williams [2006] EWHC 860 (QB) and Sheffield Wednesday -v- Hargreaves [2007] EWHC 2375 (QB)).

The outcome of the Cohen case should therefore not be a surprise to UK bloggers.