“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.
“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. )