More on Social Media and the Courts
We have recently learned of the Alberta order for service of process by Facebook.
An English court has now ordered service of a injunction via Twitter — where the Twitter user was anonymous, impersonating a blogger (it’s a complicated world out there!): http://news.bbc.co.uk/2/hi/technology/8285954.stm
I suppose there could be interesting questions if the Twitter user was not in the jurisdiction of the court, depending on (among other things) whether the rules of practice permit service out of the jurisdiction without prior leave of the court.
The complainant thought it was more efficient to get an ex parte injunction and serve it via Twitter than to address the owners of the Twitter service in California and try to get them to apply some technical remedy.
Would a Canadian court make such an order, given the growing (but still small) number of precedents (but only one in Canada so far) of treating social media as one more alternative ‘place’ on which indirect service can be made?
Around 1987 I had a defendant in Toronto with an unlisted number and the pseudonym “Doug Piranha” on his list of biker jewellery. One of the items used the logo of a famous fictional character. I could call him (a local call in Toronto) and chat, but he would not identify himself or give his location, or agree to desist.
I got an order, to be read to him over the phone, ordering him to identify himself and give his location. Doug Pirhana complied with the order immediately and without objection. My other choice was to involve Bell to get his number, but I was pretty sure from talking to the guy that this approach would work.
The so-called “Blaney’s Blaney Order” has a number of serious jurisdictional and procedural obstacles. First, unless the defendant, anonymous Twitter user, resides in Canada (where there is a bilateral reciprocal enforcement of foreign judgments treaty with the UK), the service out of the jurisdiction without prior leave of the court will require a letter of request/letters rogatory (particularly if he/she resides in the U.S.). The SCC decision in Pro Swing v. Elta Golf allows for non-monetary foreign orders, including foreign injunctions, to be recognized or enforced; however, the prevailing wisdom is to obtain letters of request/letters rogatory.
Second,an ex parte injunction served via Twitter is not equivalent to a World-wide freezing order/Mareva injunction, as it only validates service ex juris, but does not establish either personal or subject-matter jurisdiction over the lis or the defendant. A Norwich-style order would have accomplished the same objective, and Twitter would have likely complied by disclosing the identity of the alleged copyright infringer. However, unless “Blaney’s Blarney” blog is copyright or trademark registered in the UK, a grand total of 12 tweets by @blaneysblarney hardly constitutes IP infringement. Of course, if the basis of the claim is Twitterjacking (i.e. tort of appropriation of personality), then there may be some merit in the injunctive proceedings.
With respect to your question posed:
My answer is a “qualified” yes. If a plaintiff demonstrates to a Canadian court (except Quebec) that the most effective means of bringing notice of the claim to the anonymous defendant is by alternative means of service via Twitter, Facebook, MySpace, etc., then obtaining such an order authorizing service is of no real moment. However, the “John Doe” (Ontario Rule 30.10/31.10 type motions) and pre-action discovery Norwich orders are the preferred means of uncloaking anonymous internet users. (see my blog post.
Finally, I have posted a comment on Mr. Blaney’s blog asking that he post a copy of the UK High Court order, or provide a link to the decision when it becomes available on BailII. Thus far, I have not received a response.
Antonin I. Pribetic
It sounds to me as if Mr Blaney intended to use the fastest and easiest legal route to try to make the imposter shut up. So: no contact with Twitter, certainly no judicial order addressed to Twitter, no attempt to unmask anybody, and no particular attention paid to enforcement outside the UK. Just putting a judicial shot across the person’s bow may be sufficient for the purpose – and if the imposter does it again, then Mr Blaney can use heavier artillery to get at his/her identity. In that case the person is also in violation of an injunction, which may be more serious than posting to Mr B’s blog under Mr B’s name.
I certainly agree that if one wants to get enforcement of a judgment in another country, one will have to use different methods of addressing the foreign court, and quite possibly different methods of service on the defendant as well – or at least persuade the foreign court that the methods used were likely to have been effective.
And the more radical the relief sought, such as orders freezing assets, the more formal all the approaches are going to have to be.
The concept of serving through Twitter appears somewhat at odds with the essence of “service”, I mean, the whole point of service implies a reasonable expectation that whatever is being served will be read; but Twitter account owners can receive hundred or even thousands of tweets per day, and if this happens in a day where the account owner is not monitoring his tweets… tough luck! By their very nature, Tweets are a lot more ephemeral than emails that at least can sit in an inbox with an “unread” status.