Georgia Campbell

Beware the anonymous social media user

Georgia Campbell

Oct 4 2017

Confidentiality and Privacy New Media

Cases involving social media giants such as Twitter rarely come before the courts, particularly those involving posts by anonymous users, so we were interested to read the decision handed down by Pembroke J last week in X v Twitter Inc [2017] NSWSC 1300.

The plaintiff company sought final injunctive orders against Twitter Inc and Twitter International Company (collectively, Twitter) after its confidential information was published on the platform without its consent. The publications were in the form of ‘tweets’ posted from four different accounts by an unknown user, which the plaintiff alleged was motivated by malice, who seemed to have had access to the plaintiff’s financial records.

The plaintiff sought final injunctive orders that Twitter:

Macro shot of the twitter website in web browser on a computer screen.

  1.  be restrained from publishing the offending material anywhere in the world;
  2.  remove the offending material everywhere in the world from Twitter and their websites;
  3. remove everywhere in the world accounts held by the user of the offending accounts; and
  4.  be restrained from notifying the user of the offending accounts of the removal of the accounts. [1]

Whilst Twitter was aware of the hearing and of the relief claimed by the plaintiff, it elected not to appear, stating that it was “not submitting the jurisdiction.” [2]

Issues

Some of the issues for the court to decide were whether:

  • it had jurisdiction to grant injunctive relief against foreign defendants who did not appear;
  • the orders sought constituted an appropriate exercise of its discretion;
  • it was appropriate to grant injunctions which operate “everywhere in the world”; and
  • it should make orders requiring Twitter to disclose to the plaintiff the details of the user of the accounts from which the tweets were posted. [3]

Jurisdiction

Pembroke J found that the court had jurisdiction to hear the plaintiff’s claim because the injunction “sought to compel or restrain the performance of certain conduct by the defendants everywhere in the world” and this included Australia [4]. Therefore, it did not matter whether or not Twitter “submitted” to the jurisdiction.

Furthermore, the fact that the relief sought by the plaintiff included injunctions restraining Twitter’s conduct outside of Australia did not mean that the court did not have jurisdiction to hear the case. [5]

Discretion

Pembroke J reiterated that injunctive orders “should not be ‘exorbitant’ in form or effect” and that the court “should only do the minimum necessary to achieve justice.”[6] However, his Honour was satisfied that it was appropriate in this case to make the orders sought because:

  • the intent of the user of the accounts was clearly malicious;
  • the user had already used four different accounts to publish tweets and may publish more;
  • repetition of the publications needed to be prevented;
  • even though Twitter said that it was “not feasible to proactively monitor user content” to find such material, Twitter did not put any evidence before the court about its systems and processes; and
  • Twitter was likely to have a mechanism which could filter information. [7]

Worldwide orders

His Honour also found that a lack of a right of enforcement in foreign jurisdictions did not preclude the granting of the injunctions sought because:

  • the orders did not affect the proprietary rights of Twitter;
  • Twitter is a high profile organisation and it was in its best interests to comply with the law;
  • Twitter’s previous conduct suggested that it would give effect to the orders;
  • there was a public interest in making the orders; and
  • Twitter’s latest filed annual report suggested that it would act responsibly. [8]

Identity disclosure orders

As to whether Twitter should disclose to the plaintiff the details of the user of the accounts, Pembroke J found that a ‘Norwich order’ compelling discovery was justified because:

  • the confidential information in the tweets was highly commercially sensitive information and it was published on four different accounts without the plaintiff’s knowledge, consent or authorisation;
  • because the plaintiff did not know the identity of the user of the accounts, it could not enforce its rights to restrain the user from further publication of this information;
  • Twitter would have details of the user; and
  • if the user was not restrained from further publication, then the plaintiff may suffer “significant and irreparable damage” [9]

Outcome

Pembroke J made orders “substantially in accordance” with those proposed by the plaintiff (with the actual orders to remain confidential pursuant to the suppression orders). [10]

Relevance

This case is significant because the court made orders compelling and restraining the performance of certain conduct by Twitter, despite the fact that some orders were of worldwide effect and that Twitter had stated that it was not feasible to conduct proactive monitoring for offensive material. Therefore, this decision could have ramifications for other worldwide social networking platforms, such as Facebook and Instagram, who regularly facilitate the posting and/or uploading of content.

The decision also has potential ramifications for social media users who post offensive or harmful content anonymously, as it suggests that, in serious cases, the identity of these users could be disclosed.  This is very relevant for other social media platforms too, like Facebook, Tumblr and even blog sites.

 

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References:

[1] X v Twitter Inc [2017] NSWSC 1300, [29].

[2] Ibid [16].

[3] Ibid [4].

[4] Ibid [20].

[5] Ibid [21].

[6] Ibid [30].

[7] Ibid [34] to [37].

[8] Ibid [38] to [43].

[9] Ibid [48].

[10] Ibid [55].