On 12 May 2011 the English Court of Protection referred to Twitter and Facebook in an order made to prevent publication of the name of a person who was the subject of proceedings. The problem is - Twitter and Facebook are companies operating from the United States and are therefore removed from direct sanction by the English courts.
Kevin Rawlinson, on The Independent newspaper website, reported a Facebook spokesman as commenting that Facebook’s lawyers were “reviewing” the order and a Twitter spokesman as declining to comment on the order but did note that the Twitter terms of use require users to comply with “all applicable local, state, national, and international laws, rules and regulations”.[1]
The circumstances in which the English court made the order in that an application was made to the U.K. Court of Protection to withdraw all life-sustaining treatment for a woman referred to as “M”, who contracted brain stem encephalitis, which had the effect that she is described as a being in a “minimally conscious state”. The court proceedings followed family members reaching the view that “M” would not wish to continue living in her current state and that it is not in her interests to do so. The Court of Protection has powers to assist those who, for whatever reason, lack the capacity to make decisions themselves. While the court usually conducts proceedings in private, however applications for permission to withdraw nutrition and other cases involving issues of life and death are usually held in open court. Mr Justice Baker issued orders, pursuant to rule 92(2) of the Court of Protection Rules 2007, as to how the proceedings could be reported, with the orders prohibiting “the publishing or broadcasting, in any newspaper, magazine, public computer network, internet site, social network or media including Twitter or Facebook, sound or television broadcast or cable or satellite programme service, of any information (including any photograph) that is likely to lead to the identification” of “M” and other people involved in the application to the court. Service of the notice was directed to be made:
(1) by service on such newspaper and sound or television broadcasting or cable or satellite or programme services or internet service providers as they think fit, in each case by fax or first class post or e-mail addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator or internet service provider (in the case of an internet service) or the administrator of any social network or media sites and/or to their respective legal departments; and/or
(2) on such other persons as the parties think fit, by personal service.
Members of the Twitterati who defy the court anonymity orders face contempt of court proceedings. What is less certain is the liability of the administrators (one assumes that is intended to describe the managers and operators of the social network sites) in respect of informing users of the existence of the court order or in respect of the deleting of any post to social networking sites by users that breach the orders; or closing the accounts of users that defy court anonymity orders.
Roy Greenslade, of The Guardian newspaper, noted “that a Twitter spokesman told The Guardian that it does remove "illegal tweets and spam." So it has the technology to do the job.”[2] While it is also open to for administrators of any social network sites to close accounts of any person defying court orders that will be as the saying goes - after the horse has bolted.
This court order can be seen as a response the controversy over Twitter accounts being used to name (apparently incorrectly) celebrities that had obtained injunctions that included anonymity orders or orders that prohibited publication that an injunction had been granted (the so-called ‘super-injunction’). The conflict of interests as between the right to privacy of individuals and freedom of communication of media organisations is discussed in my recent blog on the decision of Mosley v United Kingdom.
Dan Sabbagh, on The Guardian newspaper blog, in considering the potential liability of Twitter and Facebook for content posted by users, refers to the 2009 decision in Metropolitan International Schools v Designtechnica and Google, in which Mr Justice Eady commented that “[o]bviously Google has no control over the search terms entered by users of the search engine or of the material which is placed on the web by its users.”[3] Dan Sabbagh summarised the conclusion as to the liability of Google as being it “could not be held liable when it came to defamation because it had not published the material that appeared on its website.”[4] Search engines operate with search algorithms that automatically produce results. That case can be argued as not providing a close analogy to the situation facing Twitter and Facebook in that social media websites are publishing media rather than technologies that search for information published elsewhere on the web.
The question is what is the responsibility of the operator of the social media technology for information posted by account holders? The purpose of a court order directing anonymity of a person is exposed to the risk that a posting on Twitter and Facebook can be automatically posted elsewhere on those sites, with the possibility of the posts being further linked to other sites including blogs.
To the extent that defamation law may provide assistance in determining the liability of social media sites, the common law defence of innocent dissemination suggest that a social media site should be responsible for content posted by account holders, that is until notice is given of the existence of the defamatory material, whereupon a duty to remove the material will exist.[5]
However the enforcement issue remains, Twitter or Facebook may choose to voluntarily comply with court orders made in ‘foreign’ jurisdictions; otherwise those who seek the protection of anonymity orders face the loss of protection of anonymity orders due to the viral spread of the information on social networking sites.
[1] Kevin Rawlinson, Social networking sites consider UK court ruling (13 May 2011) http://www.independent.co.uk/news/media/online/social-networking-sites-consider-uk-court-ruling-2283766.html
[2] Roy Greenslade, Can Twitter gag tweeters without giving the game away? (9 May 2011) http://www.guardian.co.uk/media/greenslade/2011/may/09/medialaw-twitter
[3] Metropolitan International Schools Ltd. (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) [2009] EWHC 1765 (QB) (16 July 2009) [13]; see also [64] “I believe it is unrealistic to attribute responsibility for publication to [Google], whether on the basis of authorship or acquiescence. There is no doubt room for debate as to what further blocking steps it would be open for it to take, or how effective they might be, but that does not seem to me to affect my overall conclusion on liability.”
[4] Dan Sabbagh, Injunctions, Twitter and the law (9 May 2011) http://www.guardian.co.uk/media/organgrinder/2011/may/09/injunctions-twitter-law?intcmp=239
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