Remedies for Racist Tweets — in France

Twitter has been ordered by French courts to reveal the names of people responsible for anti-semitic tweets (using a standard hashtag) to a number of public interest organizations. Though Twitter said it would cooperate if it received an order from the American courts acting on the request of the French courts, the Court of Appeal said it has to cooperate because the direct order of the French court.

Would such an order be made in favour of private parties here? Would the private bodies first have to begin a legal proceeding against the pseudonymous tweeters – a civil action? a private prosecution? a human rights tribunal proceeding? Would they have to bring Twitter in as a party, whether or not claiming direct relief against Twitter?

Would a Canadian court (or other tribunal) make a direct order against Twitter, or would it seek letters rogatory or use some such evidence-gathering procedure to get information from Twitter in California? Has either process been done in Canada? What has Twitter done in response?

I take it to be relatively well established in Internet law these days that the laws of a place where Internet content is accessible will apply to that content, whether or not the content is legally acceptable or protected where it originated. This is true of expression as of other kinds of content (like commercial offers). I don’t claim that everyone is comfortable with that result, but the law has found a number of principled justifications for the result.

The enforcement of foreign judgments based on the results of that application of law may be a separate question.

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Comments

  1. David Collier-Brown

    A good set of questions, that takes us back once more to the Hanseatic League.

    In those days, a group of forward-looking cities found ways to cooperate in matters of trade, even though they were in quite different legal regimes.

    The successes were in matters where they had three things: a common interest, motivation and expectation. Whenever one of the “three legs of the stool” was missing, nothing happened.

    We have inherited some of the successes in international commercial law, but rarely discuss their underpinnings of long ago.

    I rather expect us to repeat the same experience the Hanse did. If and only if silencing racist comments made on twitter
    - were equally desirable in the country of origin as in France,
    - were strong enough to motivate substantial efforts to carry the case to completion in both countries, and
    - were the common expectations of the citizens of both countries,
    would there be enough commonality to proceed.

    Lacking any of these, I would expect this to be a “flash in the pan” and end in inaction.

    –dave

  2. Well, a reference to the Hanseatic league in this context is certainly a surprise! However, the members of that league had no enforcement powers against each other, so they needed all three legs of that stool. The French courts may have ways to make it worth Twitter’s effort to comply, whether the US has a common expectation or not.