UPDATED: CTB v. Twitter, Inc. and Unknown Persons: Trying to Flog a Dead Horse

Briefly, the underlying case is CTB v. News Group Newspapers Ltd. et al. which is an English High Court Queen’s Bench Division judgment arising from litigation between an “anonymous” English premier league footballer, “CTB” and defendants News Group Newspapers Limited and Imogen Thomas. On 14 April 2011, Mr Justice Eady granted first a temporary injunction prohibiting the naming of the footballer in the media, which injunction was extended on April 21st, 2011. The injunction initially sought to prevent details of an extra-marital relationship between the married footballer CTB and Ms Thomas – from being published in the London newspaper, The Sun and was based on Article 8 of the European Convention on Human Rights, which guarantees an individual’s right to privacy. CTB v News Group Newspapers Ltd et al. [2011] EWHC 1232 (QB) (16 May 2011) is analysed in depth by Edward Craven at Inforrm’s Blog: Case Law: CTB v News Group Newspapers: privacy law and the judiciary.

See also,

Since then, Twitter is abuzz about the news that CTB has commenced another action in the English court, this time against Twitter, Inc.  to disclose the identities of some of its anonymous account holders alleged to have breached Justice Eady’s injunctive order by disclosing the claimant’s identity:. The case is styled: CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814. Read Charles Russell’s CRITique blog for a great summary here.

Unlike some others, I respect the Rule of Law and choose not to identify “CTB” in breach of Justice Eady’s injunctive order, irrespective of whether, in my opinion, any such order is unenforceable contra mundum.

Nevertheless, I doubt that the attempt to enforce the “anonymous injunction” against Twitter in California will succeed for a number of reasons: primarily jurisdictional, enforcement and First Amendment (free speech) issues. As Mark Stephens, recently told the The Guardian:

While the player could potentially sue the “persons unknown”, he is unlikely to be able to take the same action against Twitter which does not fall within British jurisdiction, Mr Stephens said.

The reality is that there is no bi-lateral treaty between the U.S. and the U.K. requiring the recognition of judgments, decrees, or orders. Furthermore, there is neither constitutional nor federal statutory authority requiring a U.K. judgment to be given full faith and credit. Recognition and enforcement of judgments issued by foreign courts is governed under state law: Restatement (Third) Foreign Relations Law § 481a (1987). While Hilton v. Guyot, 159 U.S. 113 (1895) recognizes the principle of comity,  in lieu of federal legislation, bilateral or multilateral treaties, foreign-country money judgments are enforceable in California only if they meet the requirements of the Uniform Foreign-Country Money Judgments Recognition Act, which is codified in Ca.Civ.Pro. §§1713-1724.  The Act applies to all actions commenced on or after January 1, 2008 and does not apply to foreign-country non-money judgments.

Rather than sue in California, it appears that Schillings, the law firm that represents CTB, has opted to go the enforcement route (which some suggest is by means of a Norwich Pharmacal Order) but is more likely through an application for letters rogatory or letter of request. In the U.S. letters rogatory are administered by the Department of State to the tribunal, officer or agency in the United States to whom it is addressed (i.e. the California state court since Twitter’s head office is located in San Francisco) under 28 U.S.C. §§ 1781 and, §§ 1782 .

While the U.S. is a signatory to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, the assistance rendered is no more than required under 28 U.S.C. §§ 1781 and 1782, regardless of treaty status. See, U.S. Declarations under that Convention, available at http://www.hcch.net/index_en.php?act=conventions.text&cid=82.

Any letters rogatory or letter of request must strictly comply with the requirements under Interstate and  International Depositions and Discovery Act. Cal. Civ. Pro. §§ 2029.100-2029.900.  Pursuant to Cal. Civ. Pro. § 116.130,  Individual means “natural person” which does not include a “corporation”. Letters rogatory are generally considered by a district court ex parte; once the court orders a subpoena to compel evidence to be served, the party subject to the subpoena may raise any objections by way of a motion to quash: In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976).

Twitter’s Terms of Service include policies, guidelines, and best practices, including “Guidelines for Law Enforcement”, which relates only  to criminal investigations and court orders, not civil matters. The Guidelines for Law Enforcement read in part:

What User Information Does Twitter Have?

User information is held by Twitter, Inc. in accordance with our Privacy Policy and Terms of Service. We require a subpoena, court order, or other valid legal process to disclose information about our users.

Most Twitter profile information is public, so anyone can see it. A Twitter profile contains a profile image, background image, and status updates, called Tweets. In addition, the user has the option to fill out location, a URL, and a short “bio” section about themselves for display on their public profile. Please see our Privacy Policy for more information on the data we collect from users.

Private information requires a subpoena or court order

In accordance with our Privacy Policy and Terms of Service, non-public information about Twitter users is not released unless we have received a subpoena, court order, or other valid legal process document. Some information we store is automatically collected, while other information is provided at the user’s discretion. Though we do store this information, it may not be accurate if the user has created a fake or anonymous profile. Twitter doesn’t require email verification or identity authentication.

Data retention information

Twitter retains different types of information for different time periods. Given Twitter’s real-time nature, some information may only be stored for a very brief period of time.

Preservation requests must be signed, include a valid return email address, and sent on law enforcement letterhead. Requests may be sent via the methods described below.

Will Twitter Notify Users of Requests for Account Information?

Twitter’s policy is to notify users of requests for their information prior to disclosure unless we are prohibited from doing so by statute or court order.

Request User Information

Twitter, Inc. is located in San Francisco, California and will only respond in compliance with U.S. law to valid legal process.

9. Most importantly, Twitter’s policy makes it clear that:

Only email from law enforcement domains will be accepted. All others will be disregarded. Non-law enforcement requests should be sent through our regular support methods (http://support.twitter.com).

Finally, Twitter has taken an aggressive stance when the U.S. Department of Justice sought to subpoena Twitter’s records relating to Wikileaks: see my previous posts: Google and Wikileaks: The Laybrinth Which Leads to Tyranny; What If Twitter Were a Canadian Company Instead? And Wikileaks, Twitter and the DOJ: Much Ado About Nothing? U.S. companies benefit from the SPEECH ACT passed in 2010 which extends First Amendment protection (albeit only in the context of foreign libel judgments and excluding injunctions). More importantly Twitter enjoys statutory immunity against intermediary liability provided by The Telecommunications Act of 1996, codified in (47 U.S.C. §230 which reads:

“(c) PROTECTION FOR `GOOD SAMARITAN’ BLOCKING AND SCREENING OF OFFENSIVE MATERIAL-

`(1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

 `(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of–

 `(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

 `(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

In sum, Twitter is not the problem. Trying to enforce a UK injunctive order in the U.S. is like trying to “close the barn door after the horse has bolted” and only amplifies the Streisand Effect.  Better to to stop flogging a dead horse.

UPDATE (May 24, 2011)

The decision of Mr. Justice Eady denying  the initial application of the co-defendant, News Group Newspapers Limited (NGN) to vary CTB’s injunction is reported as: CTB v News Group Newspapers Ltd & Anor [2011] EWHC 1326 (QB) (23 May 2011)

Later the same day, Mr. Justice Tugendhat considered a further application brought by NGN for the same relief after CTB’s real name was mentioned by Mr Hemming MP in the House of Commons during Question Period. On that basis, NGN requested that the anonymity of the claimant to be removed. Mr. Justice Tugendhat remarks,

As the public now know, anyone who wanted to find out the name of the claimant could have learnt it many days ago. The reason is that it is has been repeated thousands of times on the internet. NGN now want to join in.

In what David Allen Green at The New Statesman recently blogged about and described on Twitter as “the curious third paragraph”, Mr. Justice Tugendhat writes:

3.  It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media. [emphasis added]

Reported as: CTB v News Group Newspapers Ltd & Anor [2011] EWHC 1334 (QB) (23 May 2011)

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6 Responses to “UPDATED: CTB v. Twitter, Inc. and Unknown Persons: Trying to Flog a Dead Horse”

  1. Ted Folkman Says:

    I will have a post up on this case tomorrow morning at Letters Blogatory, but I wanted to make two subsidiary points that I won’t address in my own post. First, if CTB sought discovery from Twitter, it’s likely CTB would proceed in federal rather than state court, which makes the California Code of Civil Procedure irrelevant. Second, I think you are being too fastidious in saying that your respect for the rule of law requires you not to publish CTB’s name. Let’s assume that there are no grounds for the English courts to exercise personal jurisdiction over you. Do you really feel bound by its injunction? Suppose the injunction had been issued by the courts of a less savory country and was aimed at preventing publication of scandalous details about the dictator who ruled there? Would you still feel bound? I think the English courts really overreach to the extent they claim that these injunctions should have affect against the whole world.

    I agree 100% with your last paragraph–what a futile effort on CTB’s part, in the internet age, to try to put the cork back in the bottle!

  2. Antonin I. Pribetic Says:

    First, we don’t know yet how CTB’s counsel has chosen to proceed. 28 U.S.C. §§ 1782 specifies that: “To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.” Whether the Cali. Civ. Pro rules differ from Rule 28(b) Fed. R. Civ. P. and Rule 4(f)(2)(B), Fed. R. Civ. P. is irrelevant. What is relevant is that CTB has the onus to demonstrate why Twitter should disclose the personal information of its account holders in aid of enforcing Justice Eady’s injunctive order.

    Second, any reader with a prurient interest can find out CTB’s identity themselves. The UK is not some third world dictatorship, so, with due respect, you’re mixing legal apples and moral oranges. I prefer to err on the side of caution and adhere to responsible blawging. As Logan Pearsall Smith once said: “There is one thing that matters, to set a chime of words tinkling in the minds of a few fastidious people.”

    Finally, I look forward to reading your forthcoming post.

  3. Case of the Day: CTB v. Twitter, Inc. « Letters Blogatory Says:

    […] case of the day, CTB v. Twitter, Inc., comes to Letters Blogatory courtesy of a hat-tip from the Trial Warrior Blog. “CTB” is a pseudonym for a British soccer player (I wouldn’t have any particular […]

  4. DomCoop Says:

    Good post. But I think there has been a lot of “missing the point” here (as there always is when anybody mentions the English courts and the Constitutional right to Free Speech.

    Of course there is a European Right to Free Speech, and that has been analysed in this case.

    If you read the judgment itself, you will see that the Claimant appears to have been blackmailed by Imogen Thomas, and that her sole interest is in being able to sell details of and photographs of a pre-staged encounter (“Sting” type operation) between her and the footballer. I would query whether the US Constitutional amendments really do allow blackmailers to name the person whom they have blackmailed? (I don’t know obviously, I just wonder).

    Secondly, even though every man and his dog keeps saying they want to enforce it against Twitter, they do not.

    It is widely believed that the Twitter posts originated from either the media (who wish to be able to say “oh well, his name’s on Twitter now, so can we please print the photos and sell the papers?”) or Imogen Thomas.

    They aren’t trying to stop Twitter. They just want the evidence that it was the media or her who started it (which realistically it must have been, since nobody else knows of it) so they can go after them – in the ENGLAND AND WALES jurisdiction, for breaching court orders that they readily submitted themselves to.

  5. Antonin I. Pribetic Says:

    Thanks for your insightful comment. According to Sky News reporter, Alistair Bunkall via Twitter:
    “Mr Justice Eady will hear The Sun’s application to have CTB’s #injunction lifted at 1400.”

  6. Antonin I. Pribetic Says:

    Justice Eady has denied the Sun’s application to vary CTB’s injunction: CTB v News Group Newspapers Ltd & Anor [2011] EWHC 1326 (QB) (23 May 2011)

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