[UPDATED] Blaney’s Blarney Order: English court orders service of an injunction via Twitter

John Gregory (General Counsel, Policy Division, Ministry of the Attorney General (Ontario) Toronto, ON website) a frequent and insightful contributor at slaw.ca reports that:

“An English court has now ordered service of a injunction via Twitter — where the Twitter user was anonymous, impersonating a blogger (it’s a complicated world out there!): http://news.bbc.co.uk/2/hi/technology/8285954.stm

According the BBC report, The plaintiff, Donal Blaney’s  injunction alleges breach of copyright  (arguably, “Twitterjacking” or identity-theft) and is known as the “Blaney’s Blarney Order”, which is to be served via a link to the text of the full court order, on an “unknown Twitter user who anonymously posts to the site using the same name as a right-wing political blogger.” It may be difficult to effect service directly (i.e. via a Direct Message or “DM” in Twitter-speak) unless both Mr. Blaney and the anonymous Twitter user follow one another, but perhaps the English judge’s order is broad enough to simply require the use of the Twitter address: @blaneysblarney.

In any event, while UK procedural rules appear to be more liberal in not requiring personal service of an injunctive motion and allowing for alternative means of service, including fax or e-mail; (cf. CPR, Part 6, Practice Direction 6B – Service Within the United Kingdom, Paras.9.1-9.3 (Application for an order for service by an alternative method or at an alternative place) and CPR, Part 6, Practice Direction 6, Para. 3.1 (Service out of the Jurisdiction Where Permission is Required)) a Canadian court would likely require some tangible evidence that the anonymous Twitter user cannot be identified and served by conventional means, including a “John Doe” motion or Norwich Order. At a minimum, I am not entirely persuaded that service ex juris on a (presumably) non-UK defendant via  Twitter, a social media microblogging platform owned and headquartered in California, USA, constitutes  effective service. Whether or not the anonymous Twitter user responds to the English injunction motion, I predict jurisdictional challenges down the road, on whether the English court has properly exercised personal or subject-matter jurisdiction over the anonymous Twitter user.
Update #1:
As I recently commented on slaw.ca:

“The so-called “Blaney’s Blaney Order” has a number of serious jurisdictional and procedural obstacles. First, unless the defendant, anonymous Twitter user, resides in Canada (where there is a bilateral reciprocal enforcement of foreign judgments treaty with the UK), the service out of the jurisdiction without prior leave of the court will require a letter of request/letters rogatory (particularly if he/she resides in the U.S.). The SCC decision in Pro Swing v. Elta Golf allows for non-monetary foreign orders, including foreign injunctions, to be recognized or enforced; however, the prevailing wisdom is to obtain letters of request/letters rogatory.

Second, an ex parte injunction served via Twitter is not equivalent to a World-wide freezing order/Mareva injunction, as it only validates service ex juris, but does not establish either personal or subject-matter jurisdiction over the lis or the defendant. A Norwich-style order would have accomplished the same objective, and Twitter would have likely complied by disclosing the identity of the alleged copyright infringer. However, unless “Blaney’s Blarney” blog is copyright or trademark registered in the UK, a grand total of 12 tweets by @blaneysblarney hardly constitutes IP infringement. Of course, if the basis of the claim is Twitterjacking (i.e. tort of appropriation of personality), then there may be some merit in the injunctive proceedings.

With respect to you [John Gregory’s] question posed:

“Would a Canadian court make such an order, given the growing (but still small) number of precedents (but only one in Canada so far) of treating social media as one more alternative ‘place’ on which indirect service can be made?”

My answer is a “qualified” yes. If a plaintiff demonstrates to a Canadian court (except Quebec) that the most effective means of bringing notice of the claim to the anonymous defendant is by alternative means of service via Twitter, Facebook, MySpace, etc., then obtaining such an order authorizing service is of no real moment. However, the “John Doe” (Ontario Rule 30.10/31.10 type motions) and pre-action discovery Norwich orders are the preferred means of uncloaking anonymous internet users. (see my blog post. )

To date, efforts to obtain a copy of the UK High Court’s order authorizing and validating service of the “Blaney’s Blarney Order” have proven unsuccessful. I await Mr. Donal Blaney’s moderation of my blog comment  requesting a copy of the UK High Court order, or a link once it is posted on BailII. Until then I have also cordially invited Mr. Blaney’s legal counsel, Mr. Matthew Richardson, to author a guest blog post to discuss this important, precedent-setting legal development, which is of interest  not only to proceduralists and international litigators, but the general public and social media followers.
Update #2:
I thank Mr. Matthew Richardson for his recent blog comment and for his prompt and collegial email response to my inquiries regarding the status of the “Blaney’s Blarney Order”, which he successfully obtained from the English High Court recently. In light of pending settlement negotiations, see Blaney’s Blog post: Twitter Injunction Update, Mr. Richardson has advised that his client, Mr. Blaney has instructed him to not post a copy of the issued and entered court order until such time as negotiations with the defendant are complete and a settlement reached and the injunction Order discharged. Mr. Richardson, has, however, been kind enough to accept my invitation and I am pleased to report that he will be appearing as a guest blogger on The Trial Warrior Blog in the future, if and when the litigation is resolved.
Antonin I. Pribetic

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One Response to “[UPDATED] Blaney’s Blarney Order: English court orders service of an injunction via Twitter”

  1. Matthew Richardson Says:

    Once this is all done with I will be happy to do a little note about the case for you.

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