Limelight Articles

Limelight 11/17

Australian Courts enforce limits on international social media

Authors, Katherine Czoch , Justine Siavelis , Charu Stevenson

X v Twitter Inc [2017] NSWSC 1300

Introduction

The recent Supreme Court of NSW decision in X v Twitter displays the far reaching powers Australian courts have over social networking platforms operated by international giants such as Twitter.

In this case, the Court granted injunctions restraining Twitter from publishing certain tweets and ordering it to cancel a particular user’s account held by the user and to disclose the user’s identity to the plaintiff.

Facts

The plaintiff company, referred to as X so as to supress its identity, became aware of tweets in which its CEO was impersonated and certain confidential information was disclosed. Following a complaint to Twitter, the tweets were removed.

X then became aware of further tweets, again disclosing its confidential information but this time not impersonating anyone.  It was clear from the information published that the user had access to X’s financial records and its tweets were intended to harm X.  Upon receiving another complaint from X, Twitter decided that no action would be taken because there was no impersonation and the tweets did not violate its terms of service.

Proceedings

X commenced proceedings in the NSW Supreme Court against two Twitter entities, one incorporated in Delaware and one in Ireland.  The first was responsible for operations in the US and the second was responsible for worldwide operations outside the US.

The relief sought against Twitter included injunctive relief to restrain its conduct outside of Australia.

Decision

Obligation of confidence

Given the nature of the material tweeted by the user, the Court concluded that the user had breached his/her obligations of confidence to X as the user could only have obtained that information as an employee of X.

The Court found that Twitter’s refusal to remove the tweets was contrary to Twitter’s rules, which provided that it would not publish or post a person’s private and confidential information without their permission.

The Court also found that Twitter owed X an equitable obligation of confidence because it had been alerted to the confidential nature of the information tweeted and the circumstances in which it was unlawfully obtained.

Jurisdiction

Twitter did not submit to the jurisdiction and did not appear or participate in the proceedings, save to send an email to X’s solicitors containing submissions to the Court.  It was being advised by a law firm, so this was undoubtedly a strategic decision.

Twitter argued that the Supreme Court could only restrain a party to comply with the laws of NSW and that a restraint of publication of material outside NSW exceeded its limits and powers.

The Court rejected this argument, and held that a court acquires jurisdiction for a foreign defendant where the claim has a prescribed connection to the forum.  The Court stated that the injunction sought by X was to compel or restrain the performance of conduct everywhere in the world which necessarily included Australia.

It did not matter that the relief sought included such an injunction to, as the issue was one of discretion not power.

Discretion

While the Court noted that its orders should not be “exorbitant” and only achieve the minimum necessary, it was satisfied that it should exercise that discretion and make the orders sought because:

  • The offending tweets contained X’s highly commercially sensitive confidential information;
  • X’s confidential information was published on Twitter’s platform without the consent of X;
  • X did not know the identity of the user and could not restrain them from further publishing its confidential information;
  • Twitter had the user’s name and contact details; and
  • If the user was not restrained from further publishing X’s confidential information, there was a foreseeable risk that X may suffer significant and irreparable damage.

The Court decided that, even though it could not ensure that Twitter would comply with orders made in a foreign jurisdiction, this did not negate the utility of making the orders as the high profile and size of Twitter and statements made by Twitter in recognition of its social responsibility gave the Court confidence that the orders would be complied with. The Court also noted that there was an Australian Twitter entity and therefore Twitter had assets in the jurisdiction that may be sequestered if it became necessary to do so.

Implications

This judgment demonstrates the far-reaching power of Australian courts to enforce limits on international social media.  The Court stated that the principles identified were equally applicable to Facebook, Instagram and any other online service or social network website that could be used to facilitate the posting of confidential information or private images belonging to another person.

It is interesting that the Court referred to statements made in Twitter’s privacy policy and by Twitter about its social responsibility in justifying this decision. Making such statements is not simply a means of marketing, but has legal implications.

Date: 21 November 2017

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.