Court permits service through Twitter

by Louise Worton

Louise Worton of Vertex Law's Dispute Resolution team reports on recent developments which accommodate today's use of online media

People seek injunctions for all kinds of reasons. An injunction is a legal tool whereby the court orders someone to either do something or stop doing something. The implications of failing to abide by an injunction are serious and it is therefore essential that the individual subject to it has due notice of its terms. The Court will order that the injunction is brought to the attention of the person bound by it – this process is called service. An injunction order is usually served in person but can in some circumstances be served by other means. 
If traditional service methods are not suitable the courts are free to allow injunctions to be served by other means. A recent decision of the High Court has taken advantage of this rule by allowing service of an injunction via the social networking site, Twitter. In this case the claimant sought an injunction against a person who was impersonating him (breaching the Copyright and Intellectual Property of the blogger’s own blog) on Twitter. The court granted an injunction ordering the anonymous person to stop passing himself off as the claimant and to cease posting on Twitter. As neither the impersonator’s identity nor address was known the usual methods of service could not be pursued, so on this occasion, the court permitted the claimant to post a link on Twitter directing the impersonator to a site where the full text of the order could be found.  
Although this is a landmark case in the English courts, the courts of Australia and New Zealand have previously allowed service via Facebook, having been persuaded by the applicants that the judgments would reasonably be expected to be brought to the defendants’ attention if notice of them and their terms were forwarded by private message via Facebook.
If, in this case, the courts hadn’t allowed the claimant to serve notice via Twitter, it would still have been possible for the claimant to bring proceedings by serving what is known as a Norwich Pharmacal Order (NPO) which usually requires a third party to disclose certain documents or information. These have been used in previous cases where unknown persons have posted defamatory comments on social networking sites by ordering the owner of the site (i.e. Facebook or Twitter) to disclose the individual’s registration details.
Although an NPO is an effective legal method of obtaining the details of an anonymous user of Twitter or Facebook, an applicant must follow specified procedures and file various documents at the court, before the court will grant the order. The applicant then needs to serve this order on the disclosing party and wait for them to provide the information. In the meantime the defendant’s identity remains unknown and they can continue to post comments about the applicant. Another disadvantage of NPOs is that the applicant will normally be required to pay the legal costs of the disclosing party and indemnify them against any loss that they may suffer as a result of the order. 
Being able to serve the defendant directly, as in this case, offers a potentially cheaper and faster method of circumventing the problem of anonymity. If the defendant is served directly via Twitter or Facebook and does not comply with the court order, the claimant can then seek an NPO to find out the defendant’s IP address and establish whether they have read the order. If it is shown that the defendant has read and disregarded the order they will then be in contempt of court. If on the other hand it appears that the defendant has not yet read the order the identity of the offender will nonetheless have been discovered and the applicant can re-serve the order using this information.

It is thought that this decision will be of relevance in many applications for a variety of court orders going forward, particularly in harassment, IP, defamation and confidentiality cases where the anonymity of defendants has previously been a problem. It may even help to stem the increasingly publicised problem of online bullying.
For more information please contact Louise Worton on 01732 224049 or email her.