‘Heroic’ or just plain risky? Twitter’s approach to proceedings backfires

Twitter was very recently ordered by the Supreme Court of New South Wales to provide information about an anonymous tweeter divulging confidential information through a series of ‘venomous tweets’[1]. The judgment is notable for any online platform or website which publishes confidential information. It’s also a timely reminder that in a dispute about the court’s jurisdiction, careful consideration must be given to strategy; taking the approach of not participating in proceedings may be fraught with risk.

Judgment against Twitter

What happened?

The rogue tweeter made a series of tweets which disclosed confidential financial information in relation to the plaintiff, Company ‘X’ (whose identity has been suppressed). The tweets were delivered using a number of twitter accounts and the identity of the tweeter was unknown to Company X.

Company X asked Twitter to take down the tweets and for information about the tweeter. Some but not all of the tweets were removed on the basis that they didn’t all violate Twitter’s Terms of Service. Twitter relied on its Privacy Policy to refuse to provide information about the rogue tweeter without a valid legal process.

As a result, Company X applied to the Court for injunctive relief for the removal of the offending tweets, removal of the twitter accounts and that the rogue tweeter (or tweeters) be prevented from operating any Twitter account. In addition, orders were sought requiring Twitter to disclose identifying information about the tweeter.

The Court’s Jurisdiction?

The defendants were Twitter entities incorporated in Ireland and the United States. It appears that Twitter made a strategic decision not to appear or take part in the proceeding on the basis that the Court lacked the requisite jurisdiction.

Justice Pembroke described this position as ‘somewhat heroic’, as there are well established principles in terms of the Court’s equitable jurisdiction to make orders ‘in personam’ (that is, imposing a personal liability). He also referred to the Court rules which did not require leave to be granted to serve outside the state if an injunction is sought to compel or restrain conduct in Australia. As Company X sought to restrain Twitter’s conduct everywhere in the world (including Australia), the Court had jurisdiction. It was of no consequence whether or not Twitter decided it would submit to the jurisdiction.

Why were the Orders made?

Company X was almost entirely successful in its application and also obtained an order that Twitter pay its legal costs. Justice Pembroke gave specific consideration to whether the Court’s discretion should be exercised in circumstances where:

• the orders sought about restricting the rogue tweeter’s use of Twitter operated prospectively and were not limited in terms of time or subject matter;

• the fact that Twitter had asserted in a letter brought to the Court’s attention that it was not feasible to proactively monitor user content; and

• the utility of making the orders where there wasn’t a proven right of enforcement in other countries.

The Court was also mindful of the following notable points:

• Twitter’s high profile and size, and statements it had made in publicly available company records about social responsibility, giving Pembroke J confidence in the utility of the orders;

• as Twitter did not participate, there was no evidence as to what it could do to monitor content and the Court was satisfied that it must have some ability to filter or check information; and

• Company X was entitled to a broad form of orders to ensure that it was protected, given the maliciousness of the rogue tweeter.

The Duty of Confidence

An important take-away from the decision is that online platforms operated outside of Australia cannot rely on their ‘foreignness’ to avoid the jurisdiction in circumstances where the matter relates to the publication of confidential information. Once on notice of the confidential nature of material, whether it be written information, a photograph or some other image, an online platform is likely to become bound by the equitable duties of confidence and may need to take steps to prevent it from being published to others. In this regard, the Court was critical of the approach taken by Twitter. Pembroke J’s observation about its broad application should be heeded:

“The equitable principle … is equally applicable to Facebook, Instagram and any other online service or social networking web site that could be used to facilitate the posting of confidential information or private images belonging to another person”.

“Foreign” online platforms involved in Australian Proceedings

We have seen a variety of proceedings (and potential litigation) involving digital businesses with complex corporate structures. Although those businesses often have Australian subsidiaries, it is often the case that it is the overseas entities which enter into agreements with users and who collect and/or publish the online data.

This creates an added layer of complexity when dealing with litigation or threatened litigation, for example where injunctions (like that in the Twitter case) are sought, in claims for defamation (such as Dr Janice Duffy’s successful claim against Google)[2] and in day-to-day legal processes like subpoenas and notices to produce documents. In particular, for those business with Australian subsidiaries, it should not be forgotten that ‘Sabre’ orders could be made, where the discovering party such as the Australian entity may in certain circumstances be required to make reasonable efforts to obtain documents in the possession of the overseas entity.[3]

It’s clear that the numerous ways in which “foreign” digital entities may fall within the reach of the Australian courts means that appropriate Australian legal advice should be promptly sought upon notice of the online publication of any inappropriate information. Simply alleging a court’s lack of jurisdiction and taking no active part in proceedings is certainly a risky approach, as Twitter has learnt the hard way.