Anonymity order by English court refers to Twitter and Facebook

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.

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[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

[5] Morris Averill, Defamation – The Internet & the World-Wide Web, (Internet Law Anthology) Prospect Publishing (1997).  In the United Kingdom the ‘innocent dissemination’ defence has been “superseded” by s.1 of the Defamation Act 1996 (UK).

Mosley v United Kingdom – self-regulation of the press & litigation is preferred to pre-publication notification to the subject of "kiss & tell” stories

The European Court of Human Rights (ECHR) delivered the decision in Mosley v United Kingdom on Tuesday 10 May 2011.  The central question was whether the United Kingdom had a positive obligation to protect Mr Mosley’s privacy by providing for a legal duty for media publishers to inform him that a story was being written so as to give him an opportunity to seek an injunction to prevent publication of the story.  The ECHR rejected Mr Mosley’s application with the court noting that such as requirement of pre-notification of stories would have a “chilling effect” on the press.[1] 

Now the back story.  On 30 March 2008 the ‘News of the World’ published an article under the headline “F1 boss has sick Nazi orgy with 5 hookers”.  While Mr Mosley (the former head of Federation Internationale de l'Automobile that organises Formula One motorsport) had no warning of the publication of the story, the contents of the story included still photos extracted from a video taken clandestinely by one of the participants. Later that day Mr Mosley attempted to injunct the publication of an extract of that video on the ‘News of the World’ website, Eady J refused an injunction as the video had been extensively viewed during the hours the video was accessible on the Web before it was voluntarily removed by the newspaper;[2] Eady J commenting that the grant of the order in the terms sought would make very little practical difference and that, “[t]he Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures.”[3] The video was subsequently reinstated on the newspaper’s website.

Later in 2008, Max Mosley obtained a judgment for breach of his right to privacy and damages of £60,000 against the publishers of the ‘News of the World’.[4] Eady J held that the clandestine video taken by one of the participants was a breach of confidence and a violation of the Article 8 rights of all those involved;  publication could only be justified if it were in the public interest. Eady J held that the publication of the video was not a matter of genuine public interest that justified interference in Mr Mosley’s private life. The allegation of adultery did not place the story in the public interest and the ‘News of the World’ were unable to produce evidence that whatever was taking place had a Nazi theme – Eady J commented on the absence of any specifically Nazi indicia in the video - so there was no basis for the newspaper story being the public interest on that basis. [5] 

Privacy and media freedom arguments in Europe are conducted in an environment in which privacy and freedom of communication arguments address the relevant articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The Convention contains a right to a private life in Article 8 in that “[e]veryone has the right to respect for his private and family life, his home and his correspondence”.[6] The European courts must balance this privacy interest with the freedom of communication in Article 10 of the Convention.[7]  The obligations in the Convention are reflected in the Human Rights Act 1998 (UK). 

In Mosley v United Kingdom the ECHR consider the now extensive case law concerned with balancing privacy interests with media freedom. The ECHR commented “that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest”.[8]  The ECHR noted the system of self-regulation of the press that operated in the United Kingdom, with guidance provided in the Editors’ Code and Codebook and oversight of journalists’ and editors’ conduct by the Press Complaints Commission (PCC).[9]  

The conclusion of the ECHR was that “[h]owever meritorious the applicant’s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism.”[10]  The role and effectiveness of the PCC is questioned by some lawyers who represent celebrities that are the focus of the tabloid press.[11]

In commencing the ECHR action, Mr Mosley set out to persuade the European court that media organisation should have a legal duty to give prior notice to the subjects of stories when the media organisation intend to publish a story that relates of their private life.  The argument being tabloid editors may choose to ignore the Human Rights Act protections of privacy; with the tabloid editors being assumed to believe the subjects will not incur the costs of added publicity of proceeding with breach of privacy litigation.  What Mr Mosley seeks to achieve in the ECHR is opposed by media organisations that anticipate that if prior notice is a legal requirement then the subjects of the “kiss and tell” and other embarrassing stories will proceed to seek injunctions; with media organisations submissions t0 the ECHR addressing media freedom and the considerable legal costs and disruption to editorial departments that could flow from an obligation to give pre-publication notification.

The House of Commons Culture Media and Sport Committee, in their Report issued on 9 February 2010, did not support requiring pre-publication notification with the Committee concluded that “a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a “public interest” exception”.[12]

It is possible for Mr Mosley to proceed to appeal and argue the matter in a “Grand Chamber” hearing, indeed a media release from his lawyers indicates that is being considered.  However the ECHR decision of 10 May 2011 leave little scope argument that the U.K. government have failed to comply with any European or international obligation in allowing the tabloid media to operate under the system of self-regulation – backed up by the PCC and the availability of legal remedies. The ECHR noted that Mr Mosley “has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned.”[13]  The decision will not end the privacy debate in the U.K.  It is possible that statutory press regulation could be introduced to include a pre-publication requirement in a statutory code. 

The impact of ECHR decisions on the other common law jurisdictions is less direct given that the Convention is part of European law, and is not a global human rights convention, such as the Universal Declaration of Human Rights (UDHR).[14] Mosley v United Kingdom will not have a direct impact on Australian law, although it may reignite the privacy debate and return attention to the Australian Law Reform Commission’s 2008 report on privacy.[15]  In Australia[16] and New Zealand,[17] the boundaries of privacy interests and the existence, or not, of an action for invasion of privacy is a matter of continuing debate, with privacy law at different stages of evolution in each jurisdiction.   The decision of the High Court of Australian in Australian Broadcasting Corporation v Lenah Game Meats[18] re-open the privacy debate; with decision of the Victorian Supreme Court in Giller v Procopets[19] and the Queensland District Court in Grosse v Purvis[20]   providing support for a privacy tort in the courts of first instance.

A further strand in this privacy debate is the prevalence of courts issuing injunctions in which even the existence of the grant of the injunction is prohibited, together with reporting of the subject matter that is private or confidential information. My earlier blog commented on the so-called super-injunctions.  Sometime later in 2011 a committee of judges headed by Lord Neuberger, the Master of the Rolls, is to publish the report of an inquiry into super-injunctions, and the U.K. Government is expected to consider the report in a Bill on defamation and libel law.  The report of the inquiry should also be of interest in Australia to the extent it provides guidance as to the exercise of common law judicial powers to grant suppression orders.

Around the time the decision in Mosley v United Kingdom was being delivered the other media story concerned how Twitter was being used to get around the super-injunctions, with the ‘viral effect’ of postings on social media websites having the potential to subvert any super-injunctions issued against the ‘traditional’ media.  However on investigation the BBC concluded that the information being disseminated was incorrect – so that the use of Twitter only served to confuse rather than inform.

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[1] 48009/08 [2011] ECHR 774 (10 May 2011) [132].

[2] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) (9 April 2008). The video was accessible for about 24 hours before being was removed; the on-line version of the article was visited approximately 435,000 times, whereas the edited footage itself was viewed about 1,424,959 times over the same period.

[3] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) (9 April 2008) [34].

[4] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (24 July 2008).

[5] Eady J also held that exemplary damages were not available in a claim for infringement of privacy: a claim for compensatory damages could reflect an element of aggravation.

[6] Article 8. 2. of the Convention states: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[7] Article 10 of the Convention states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

[8] 48009/08 [2011] ECHR 774 (10 May 2011) [117].

[9] 48009/08 [2011] ECHR 774 (10 May 2011) [119].

[10] 48009/08 [2011] ECHR 774 (10 May 2011) [121].

[11] “This house believes English libel laws are fit for purpose” – a Queen Mary/City University Seminar – Judith Townend (6 May 2011) http://inforrm.wordpress.com/2011/05/06/news-%E2%80%9Cthis-house-believes-english-libel-laws-are-fit-for-purpose%E2%80%9D-%E2%80%93-a-queen-marycity-university-seminar-%E2%80%93-judith-townend/

[12]2nd Report of Session 2009-10, HC 362. [93] http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/36205.htm#a8

[13] 48009/08 [2011] ECHR 774 (10 May 2011) [124].

[14] Universal Declaration of Human Rights (UDHR) Article 12 “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence …”; Article 19 “Everyone has the right to the freedom of opinion and expression …”. The UDHR is a declaration adopted by the United Nations General Assembly (A/RES/217, December 10, 1948), http://www.un.org/Overview/rights.html

[15] Australian Law Reform Commission, ALRC Report 108, For Your Information: Australian Privacy Law and Practice, (May 2008) Volumes 1-3.

[16] Privacy interests have been considered in the context of access to pleadings by non-parties in Llewellyn v Nine Network Australia [2006] FCA 836; and freedom of the media in the context of injunctions to prevent publication of allegedly defamatory material in Heartcheck Australia v Channel 7 Sydney [2007] NSWSC 555.

[17] New Zealand has enacted the Bill of Rights Act 1990 (BORA), in which s. 14 provides that “[e]veryone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”.  However BORA does not create a guaranteed right of privacy.  Privacy interests are recognised in the context of the extended understanding of breach of confidence; with the NZ courts also recognising privacy values in s. 5 BORA. While Hosking v Pacific Magazines [2004] NZCA 24, rejected the privacy claims of the applicants, the court gave some support for the evolution of an action for breach of privacy.

[18] Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63; (2001) 208 CLR 199; (High Court of Australia).

[19] Alla Giller v Boris Procopets [2004] VSC 113 (Victorian Supreme Court).

[20] Alison Robyn Grosse v Robert James Purvis [2003] QDC 151; Aust Tort Report 81-706 (Queensland District Court).  

The diagnosis & treatment of allergies to ACCC legal action over FaceBook posting by ‘fans’ of a company

Allergy Pathway operates clinics for the diagnosis and treatment of allergies.  In 2009 the Australian Competition and Consumer Commission (ACCC), as competition regulator, formed the opinion that the way in which Allergy Pathway promoted its services in traditional media and on the web breached the Trade Practices Act 1974 (Cth) in the following ways: Allergy Pathway engaged in misleading or deceptive conduct (s 52); falsely represent that services are of a particular standard or quality (s 53(aa)); represent that services have benefits they do not have (s 53(c)); and engage in conduct that is liable to mislead the public (s 55A).

Justice Finkelstein in the Federal Court, accepted the claims of the ACCC and ordered Allergy Pathway to carry out corrective advertisement, including on “all websites which are owned, operated, controlled or maintained by or on behalf of” Allergy Pathway;[1] in addition a trade practices compliance training program was ordered to be implemented by the company. The matter should have ended there but for a later social media marketing campaign that included a YouTube video uploaded by the company, which was linked to FaceBook and Twitter posting by Allergy Pathway.

This marketing campaign ended up with the company facing contempt of court proceedings for breach of the 2009 orders.  The outcome was that fines of $7,500 were imposed (the ACCC was asking for $10,000).

The YouTube video, FaceBook posting and Twittering by the company seem an uncomplicated claim, however part of the ACCC’s claim against the company was the posting by ‘fans’ on the Facebook wall and Twitter messages was the responsibility of Allergy Pathway and was part of the company’s contempt of the court orders.

In a February 2011 judgment Finkelstein J. describes the ACCC’s allegation as being that the contempt of the 2009 orders was made up of publications that were grouped into several categories: ‘(1) statements and links to statements posted by Allergy Pathway on its website and Facebook and Twitter pages and in a video posted on YouTube and embedded on its Facebook and Twitter pages; (2) testimonials written by clients and posted by Allergy Pathway on its website and Facebook and Twitter pages; (3) testimonials written and posted by clients on Allergy Pathway’s Facebook “wall”; and (4) Allergy Pathway’s responses to queries posted by members of the public on its Facebook wall.”[2]

Allergy Pathway conceded that most of the statements in categories (1), (2) and (4), breach the 2009 orders. The category (3) statements were the subject of argument before Finkelstein J. as to whether statements posted on the respondent’s Facebook and Twitter pages by others constitutes publication by Allergy Pathway. To restate part of the 2009 orders the company undertook not “make or publish or cause to be made or be published, in any internet website”[3] statements (set out in the judgment) that had been determined to breach the Trade Practices Act.

To determine whether the social media campaign was caught by this 2009 undertaking, Finkelstein J. considered cases from defamation law in order to focus on the meaning of the words “publish” and “make”.  There are pre-internet cases on posting on walls of the golf club premises in England and the walls of lavatories in Texas bars, which put the responsibility on the person in charge of the premises to remove defamatory material, after it has been brought to their attention. I cover these cases in a 1997 article on defamation on the internet.[4]

Since that time there have been a number of internet cases that confirm, with regard to defamation law, that the person in charge of a ‘virtual’ wall has responsibilities to remove defamatory material, after it has been brought to their attention.  Finkelstein J. commented that that Allergy Pathway had conceded that it “knew that persons had published testimonials on its Twitter and Facebook pages and that it took no steps to have them removed. I infer that one reason Allergy Pathway did not remove the testimonials was that it wanted to take the benefit of the praise for its services. Another possible reason is that Allergy Pathway thought the testimonials added legitimacy to its business.”[5] Applying the line of reasoning from the defamation cases Finkelstein J. concluded that Allergy Pathway became the publisher of the testimonials and “accepted responsibility for the publications when it knew of the publications and decided not to remove them”. [6]

The end result of the social networking campaign for the company was that it had to pay the fines, the full legal costs of the ACCC (on an indemnity basis) and carry out further corrective advertising on the front counter of its clinics, its website and Twitter and Facebook pages. Allergy Pathway was also required to send a letter (electronically or otherwise) to all of its customers explaining what has occurred.

What can be taken from this case is that for whatever media is being used – is that first you have to get the message compliant with Federal trade practices legislation[7] and the fair trading legislation of the States or Territories; the second take out from the case is the social media campaign has to be actively managed.

Any virtual ‘wall’ that customers can post to, must be edited to keep it on message and avoid statements that the ACCC or state or territory fair trading departments may jump on.  Not all praise from customers is good news; such as if it acts to mislead other customers or potential customers (in way prohibited by trade practices and fair trading legislation). 

If any messages act to misrepresent the products or services or otherwise are misleading or deceptive messages; then if they remain for a significant time on the virtual ‘walls’ set up as part of any social media campaign, the company responsible for setting up and managing the virtual ‘walls’ will be accepted as taking responsibility for the publishing of the misleading messages – which can have consequences as described above.

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[1] ACCC v Allergy Pathway Pty Ltd [2009] FCA 960 (27 August 2009)

[2] ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 (10 February 2011) [8].

[3] ACCC v Allergy Pathway Pty Ltd [2009] FCA 960 (underlining added for emphasis).

[4] Morris Averill, ‘Defamation – The Internet & the World-Wide Web’, published in ‘Internet Law Anthology ‘, Prospect Publishing (1997).

[5] ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 [32].

[6] Ibid. [33].

[7] The Trade Pactices Act 1974 (Cth) has been superceded by the Competition and Consumer Act 2010 (Cth) but the obligations remain the same.