Service Permissible via Twitter

In the recent case of Blaney v Persons Unknown (October 2009), the English court demonstrated a willingness to move with the times and made an order permitting alternative service of an injunction via Twitter, the popular social networking website. No written judgment is available, but the details of this case have been widely reported in the press.

This is the first English decision of its kind, and comes in the wake of two other unreported decisions in Australia and New Zealand permitting service through Facebook (MKM Capital Property Limited v Corbo and Poyser No. SC 608 of 2008 and Axe Market Gardens v Craig Axe CIV: 2008-485-2676).

The Blaney case

Mr Donal Blaney, a commentator who runs a right wing blog called "Blaney's Blarney", was being impersonated on Twitter by someone using the username '@BlaneyBlarney', together with a photograph of Mr Blaney and a link to his blog. Mr Blaney sought an injunction against the defendant impersonator requiring him to cease his tweeting (in breach of intellectual property rights), preserve the account and password and identify himself.

Mr Justice Lewison, sitting in the Chancery Division, granted the injunction sought and permitted alternative service via Twitter (under CPR 6.15) on the basis that there were good reasons for doing so. In particular, the defendant was anonymous and difficult to identify; the offending Twitter page through which service was to be effected apparently belonged to and was regularly visited by the defendant; and it was possible to monitor on Twitter whether the defendant had received the injunction.

Service via Twitter was effected by way of a message being sent to the defendant's account, which included a link to the full text of the injunction. The defendant would have received this message the next time he logged on. Following service, the defendant agreed to comply with the injunction, which is now colloquially referred to as "Blaney's Blarney Order".

Service implications

This case evidences the English court's willingness to take a pragmatic attitude towards service.

First, it permitted service via Twitter in circumstances where (a) those regular methods of service stipulated under CPR 6 were unavailable, and (b) it was reasonably expected that this method would bring the terms of the injunction to the defendant's attention. This was because Twitter was the medium through which the unlawful activities were anonymously conducted. MKM Capital and Axe Market had permitted service via Facebook in similar circumstances. In particular, each of the defendants could only be located through their Facebook profiles (although in those cases the unlawful conduct did not relate to the defendants' activities on this website). For further details on MKM Capital and electronic and alternative service more generally, see our

e-bulletin dated 25 March 2009.

Second, permitting service through Twitter obviated the need to first ascertain the identity and whereabouts of the anonymous defendant (for service purposes). This approach, which appears standard in such circumstances, would have been time consuming and costly. It would most likely have involved seeking Norwich Pharmacal relief against Twitter in order to ascertain from its registration data the information necessary for service (see Applause Store Productions Limited and Mathew Firsht v Raphael [2008] EWHC 1871 (QB)). In the event that no meaningful (or false) data had been registered online, it may have been necessary to also seek Norwich Pharmacal relief against the relevant internet service provider. A complicating factor in the Blaney case was that Twitter is based in California. Therefore, Mr Blaney would have needed to seek equivalent relief before the Californian court.

Finally, as the matter appeared urgent, service via Twitter was also deemed the quickest and most efficient method of service.

Other implications

The huge popularity of social networking websites, and the relative ease with which they may be used for unlawful means, looks set to become a growing trend in defamation, harassment, intellectual property, privacy and confidentiality cases. Indeed, Applause Store Productions was the first libel and privacy case to reach trial involving Facebook. Further, online impersonations are increasingly prevalent, with leading Tweeters (such as celebrities) often having hundreds of impersonators.

Conclusion

Although an exceptional case, Blaney's Blarney Order may well become a useful tool in the court's armoury in the years to come, and will assist claimants in their attempts to serve court orders (and possibly proceedings) on anonymous and unidentifiable defendants.

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

Herbert Smith LLP, Gleiss Lutz and Stibbe are three independent firms which have a formal alliance.

© Herbert Smith LLP 2009