Injuncted via Twitter

GuyClapperton 1 299 Views

A judge has said a lawsuit can be delivered via Twitter. It's an interesting case, an odd idea and a pity there are going to be so many logistical obstacles.

The scenario is simple. Someone is posing as a (real) right-wing blogger - they've effectively 'borrowed' his name for a Twitter account and are putting notes up that the actual blogger finds objectionable. In British law, and I have no doubt other territories will have their equivalents, there is a thing called 'passing off', which means I can't pass myself off as someone else, they can't pass themselves off as me, and soforth. So the blogger doesn't need a trademark, he's protected.

Thing is, the Tweeter hasn't identified himself. So the judge has said the lawsuit can be delivered via Twitter - a link will take the Tweeter through to the text of the injunction.

Yeah...and then what? There are a great many things that can happen and only one of those involves the perpetrator actually being caught. The most likely is that he or she will ignore the lawsuit. If he or she can't be found then there's nothing to gain from coming forward. The second is that they shut the account down and start again under another name, and continue this sort of Twitter-tag for a while. The third is that he or she gets caught but denies having seen the Tweet with the lawsuit link (maybe you can prove someone opened a Tweet but I can assure you I have Tweetdeck running on my computer all the time so about 1500 people could 'prove' I'd opened their Tweets without any certainty that I'd read them unless I'd replied).

In fact the more I look at this, the less enforceable it appears and the more objections to Twitter as a means of delivery start to look. I'd be delighted if someone could prove me wrong but I just don't see how this can fly.

Details of the case are in a report here.

Dani AI

Generated

raised the key practical doubts about enforceability. English courts have, however, treated substituted service on social media as a legitimate procedural tool where it is the only realistic way to reach an anonymous account-holder. In Blaney v Persons Unknown (2009) Mr Justice Lewison permitted an injunction to be sent by private message to a Twitter account because the defendant could not be reached by ordinary methods. (theguardian.com)

The statutory gateway is Part 6 of the Civil Procedure Rules: rule 6.15 (and rule 6.27 for documents other than the claim form) allows the court to authorise an alternative method where there is a good reason and the claimant has shown reasonable steps to locate the defendant. Courts expect clear evidence that the social account belongs to the named person and that it is actively used; the same approach underpinned the High Court’s later permission to serve proceedings by Facebook in AKO Capital (2012). (justice.gov.uk)

Practical checklist that addresses the enforcement gaps noted by : document exhaustive attempts to find a postal/address for service; collect contemporaneous screenshots, follower/friend confirmations and other links tying the account to the real person; file an affidavit describing the steps taken and the proposed substituted method (for example, a private message containing a PDF link, a precise deemed-service date and an extended period to reply); and be prepared to seek a disclosure/Norwich Pharmacal order against the platform to obtain IP/subscriber data if necessary. Courts have granted disclosure orders in social-media cases, but platform data may be limited and cross-border enforcement can add cost and delay. (hsfkramer.com)

Bottom line: substituted service via Twitter (and other networks) is now an accepted, practical option when deployed with procedural rigour and solid evidence; it is not foolproof, but used alongside disclosure applications it can be effective — which is consistent with the claimant’s later report of success in the Blaney matter. (griffin.law)

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GuyClapperton 12 Staff Writer

(COUGH) I suppose I should be the first to confirm that the blogger in the case has now said the injunction and the method by which it was served has been a rousing success. I never said my analysis was perfect..!

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