Corporate Focus - February 2010
Stop Twittering!
The recent bad weather was no joke for
Manchester’s transport organisation GMPTE after an imposter set up
a GMPTE twitter account commenting ‘it’s snowing and we have no
idea what’s going on.’ But this is not the first time that rogue
twitter accounts have caused a dispute. In October 2009, the High
Court served its first injunction via Twitter against an unknown
Twitter user who anonymously posted to the site using the same name
as a political blogger Donal Blaney.
Donal Blaney discovered an impersonator on
Twitter making postings with his photograph and the name of his
blog called ‘Blaney’s Blarney’. Mr Blaney alleged this breached his
copyright and other intellectual property rights.
When individuals or companies find harmful
information posted about them on websites they have to identify who
has made the posting to bring a claim. As the postings are usually
anonymous or use bogus names then to identify the wrongdoer the
claimant has to contact the website owner or Internet Service
Provider. A request is made to remove the posting (which is often
effective) and to disclose the proper name and contact details of
the person making the posting. Usually, the claimant has to apply
to the court for a ‘Norwich Pharmacal’ order compelling the
Internet Service Provider, as a non-party to the proceedings, to
disclose information that will assist the claimant in identifying
the individual who has allegedly caused harm. Even then it can be
that the registration details themselves are false.
Mr Blaney did not pursue such an order.
Instead the court ordered an injunction preventing further postings
and ordered service through Twitter to bring the order to the
attention of the defendant. The Civil Procedure Rules (CPR) allows
for service personally or by fax or post at an individual’s last
known residence. However, the CPR also allows alternative methods
of service if there is good reason supported by evidence. As there
was no way of determining the defendant’s last known residence the
presumption here was that the best way to bring the order to the
defendant’s attention was by service through Twitter.
Whilst this is the first such order in the
Courts of England and Wales, similar orders have been made before
in New Zealand and Australia. There service was allowed through
Facebook based on evidence that this was the most effective way of
bringing documentation to the attention of the defendants.
Although this is a novel development, and
certainly demonstrates the courts’ flexibility; does this mean that
there will be a rash of applications seeking ‘Blaney’s Blarney
Orders’ as they have been styled? Possibly not. Here the order here
was based solely on the specific facts of the case. Also
enforcement action will still be required should the injunction
order simply be ignored. Although served if the defendant does not
comply the claimant still needs to identify the defendant to bring
further action.
In Blaney’s case the order was complied with
and the point wasn’t taken further. If the defendant had not
complied Blaney would have required a disclosure order from Twitter
to disclose the identity of the bogus blogger.
Whilst the case demonstrates the courts’
willingness to assist parties in serving documentation will it
drastically change the way in which proceedings are served? If
there is little evidence of an address for service then service
through social networking sites may become more prevalent. Such an
order may also be effective, in the first instance, to prevent
further postings. But in the event of non-compliance, enforcement
issues remain. Individuals may become wise to the question of
enforcement thanks to the publicity about potential non-compliance
which Blaney’s case received. Many may simply ignore similar orders
albeit at the risk that if a disclosure order is then made, and the
true identity of the defendant is discovered, there will be
consequences for the defendant for failure to comply with the
order. If there is an increase in applications for such orders in
the future then the question as to their effectiveness still needs
to be considered.
For further information please contact
Tom Collins, Associate in our Commercial Dispute Resolution team on
0151 242 6939 or Tom.collins@weightmans.com