Briefly, the underlying case is CTB v. News Group Newspapers Ltd. et al. which is an English High Court Queen’s Bench Division judgment arising from litigation between an “anonymous” English premier league footballer, “CTB” and defendants News Group Newspapers Limited and Imogen Thomas. On 14 April 2011, Mr Justice Eady granted first a temporary injunction prohibiting the naming of the footballer in the media, which injunction was extended on April 21st, 2011. The injunction initially sought to prevent details of an extra-marital relationship between the married footballer CTB and Ms Thomas – from being published in the London newspaper, The Sun and was based on Article 8 of the European Convention on Human Rights, which guarantees an individual’s right to privacy. CTB v News Group Newspapers Ltd et al. [2011] EWHC 1232 (QB) (16 May 2011) is analysed in depth by Edward Craven at Inforrm’s Blog: Case Law: CTB v News Group Newspapers: privacy law and the judiciary.
See also,
- Tim Lowles’ take at Inforrm’s Blog, Opinion: “CTB and Imogen Thomas, Eady versus the Tabloid Press?” ;
- Love and Garbage Blog: Don’t say I didn’t tell you so – superinjunctions, anonymised injunctions and Scotland and
- Charon QC’s UK Law Blog: Postcard from The Staterooms: ********** Edition
Since then, Twitter is abuzz about the news that CTB has commenced another action in the English court, this time against Twitter, Inc. to disclose the identities of some of its anonymous account holders alleged to have breached Justice Eady’s injunctive order by disclosing the claimant’s identity:. The case is styled: CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814. Read Charles Russell’s CRITique blog for a great summary here.
Unlike some others, I respect the Rule of Law and choose not to identify “CTB” in breach of Justice Eady’s injunctive order, irrespective of whether, in my opinion, any such order is unenforceable contra mundum.
Nevertheless, I doubt that the attempt to enforce the “anonymous injunction” against Twitter in California will succeed for a number of reasons: primarily jurisdictional, enforcement and First Amendment (free speech) issues. As Mark Stephens, recently told the The Guardian:
While the player could potentially sue the “persons unknown”, he is unlikely to be able to take the same action against Twitter which does not fall within British jurisdiction, Mr Stephens said.
The reality is that there is no bi-lateral treaty between the U.S. and the U.K. requiring the recognition of judgments, decrees, or orders. Furthermore, there is neither constitutional nor federal statutory authority requiring a U.K. judgment to be given full faith and credit. Recognition and enforcement of judgments issued by foreign courts is governed under state law: Restatement (Third) Foreign Relations Law § 481a (1987). While Hilton v. Guyot, 159 U.S. 113 (1895) recognizes the principle of comity, in lieu of federal legislation, bilateral or multilateral treaties, foreign-country money judgments are enforceable in California only if they meet the requirements of the Uniform Foreign-Country Money Judgments Recognition Act, which is codified in Ca.Civ.Pro. §§1713-1724. The Act applies to all actions commenced on or after January 1, 2008 and does not apply to foreign-country non-money judgments.
Rather than sue in California, it appears that Schillings, the law firm that represents CTB, has opted to go the enforcement route (which some suggest is by means of a Norwich Pharmacal Order) but is more likely through an application for letters rogatory or letter of request. In the U.S. letters rogatory are administered by the Department of State to the tribunal, officer or agency in the United States to whom it is addressed (i.e. the California state court since Twitter’s head office is located in San Francisco) under 28 U.S.C. §§ 1781 and, §§ 1782 .
While the U.S. is a signatory to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, the assistance rendered is no more than required under 28 U.S.C. §§ 1781 and 1782, regardless of treaty status. See, U.S. Declarations under that Convention, available at http://www.hcch.net/index_en.php?act=conventions.text&cid=82.
Any letters rogatory or letter of request must strictly comply with the requirements under Interstate and International Depositions and Discovery Act. Cal. Civ. Pro. §§ 2029.100-2029.900. Pursuant to Cal. Civ. Pro. § 116.130, Individual means “natural person” which does not include a “corporation”. Letters rogatory are generally considered by a district court ex parte; once the court orders a subpoena to compel evidence to be served, the party subject to the subpoena may raise any objections by way of a motion to quash: In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976).
Twitter’s Terms of Service include policies, guidelines, and best practices, including “Guidelines for Law Enforcement”, which relates only to criminal investigations and court orders, not civil matters. The Guidelines for Law Enforcement read in part:
What User Information Does Twitter Have?
User information is held by Twitter, Inc. in accordance with our Privacy Policy and Terms of Service. We require a subpoena, court order, or other valid legal process to disclose information about our users.
Most Twitter profile information is public, so anyone can see it. A Twitter profile contains a profile image, background image, and status updates, called Tweets. In addition, the user has the option to fill out location, a URL, and a short “bio” section about themselves for display on their public profile. Please see our Privacy Policy for more information on the data we collect from users.
…
Private information requires a subpoena or court order
In accordance with our Privacy Policy and Terms of Service, non-public information about Twitter users is not released unless we have received a subpoena, court order, or other valid legal process document. Some information we store is automatically collected, while other information is provided at the user’s discretion. Though we do store this information, it may not be accurate if the user has created a fake or anonymous profile. Twitter doesn’t require email verification or identity authentication.
Data retention information
Twitter retains different types of information for different time periods. Given Twitter’s real-time nature, some information may only be stored for a very brief period of time.
Preservation requests must be signed, include a valid return email address, and sent on law enforcement letterhead. Requests may be sent via the methods described below.
Will Twitter Notify Users of Requests for Account Information?
Twitter’s policy is to notify users of requests for their information prior to disclosure unless we are prohibited from doing so by statute or court order.
Request User Information
Twitter, Inc. is located in San Francisco, California and will only respond in compliance with U.S. law to valid legal process.
9. Most importantly, Twitter’s policy makes it clear that:
Only email from law enforcement domains will be accepted. All others will be disregarded. Non-law enforcement requests should be sent through our regular support methods (http://support.twitter.com).
Finally, Twitter has taken an aggressive stance when the U.S. Department of Justice sought to subpoena Twitter’s records relating to Wikileaks: see my previous posts: Google and Wikileaks: The Laybrinth Which Leads to Tyranny; What If Twitter Were a Canadian Company Instead? And Wikileaks, Twitter and the DOJ: Much Ado About Nothing? U.S. companies benefit from the SPEECH ACT passed in 2010 which extends First Amendment protection (albeit only in the context of foreign libel judgments and excluding injunctions). More importantly Twitter enjoys statutory immunity against intermediary liability provided by The Telecommunications Act of 1996, codified in (47 U.S.C. §230 which reads:
“(c) PROTECTION FOR `GOOD SAMARITAN’ BLOCKING AND SCREENING OF OFFENSIVE MATERIAL-
`(1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
`(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of–
`(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
`(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
In sum, Twitter is not the problem. Trying to enforce a UK injunctive order in the U.S. is like trying to “close the barn door after the horse has bolted” and only amplifies the Streisand Effect. Better to to stop flogging a dead horse.
UPDATE (May 24, 2011)
The decision of Mr. Justice Eady denying the initial application of the co-defendant, News Group Newspapers Limited (NGN) to vary CTB’s injunction is reported as: CTB v News Group Newspapers Ltd & Anor [2011] EWHC 1326 (QB) (23 May 2011)
Later the same day, Mr. Justice Tugendhat considered a further application brought by NGN for the same relief after CTB’s real name was mentioned by Mr Hemming MP in the House of Commons during Question Period. On that basis, NGN requested that the anonymity of the claimant to be removed. Mr. Justice Tugendhat remarks,
As the public now know, anyone who wanted to find out the name of the claimant could have learnt it many days ago. The reason is that it is has been repeated thousands of times on the internet. NGN now want to join in.
In what David Allen Green at The New Statesman recently blogged about and described on Twitter as “the curious third paragraph”, Mr. Justice Tugendhat writes:
3. It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media. [emphasis added]
Reported as: CTB v News Group Newspapers Ltd & Anor [2011] EWHC 1334 (QB) (23 May 2011)
Related articles
- Injunction remains, High Court rules (guardian.co.uk)
- Gagging Order: Bid To Reveal Footballer Fails (news.sky.com)
- Gagging Order: MP Names Footballer In Commons (news.sky.com)
- Footballer’s Twitter disclosure order prompts online action (bbc.co.uk)
Filed under: anonymity, anonymous, conflict of laws, contempt order, contra mundum, England and Wales, England and Wales High Court, English law, First Amendment, foreign judgments, foreign plaintiffs, free speech, Freedom of expression, freedom of speech, international litigation, jurisdiction, Justice Eady, Letters of Request, Letters Rogatory, pre-suit discovery, private international law, SPEECH Act, subpoenas, Territorial Jurisdiction, Twitter, U.K. Human Rights Act, United States, United States Constitution Tagged: Article 8 of the European Convention on Human Rights, David Eady, Hilton v. Guyot, News International, Norwich Pharmacal Co. v Customs and Excise Commissioners, Twitter, United States Image may be NSFW.
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