The case of the day is Comcast Cable Communications, LLC v. Hourani (D.D.C. 2016). Issam Hourani was plaintiff in a libel action in England against PsyberSolutions LLC, Allison Blair, Alistair Thomson, and Bryan McCarthy. The claim was that the defendants had falsely asserted that Hourani was involved in the abduction, torture, rape, and murder of Anastasya Novikova in Beirut in 2004. The English complaint alleged that the defendant published the allegedly libelous statements on Facebook, Twitter, and YouTube. Hourani claimed that an unknown Comcast subscriber using a computer with a particular IP address was “hired to stage fake performances to defame and cause harm” to him and to “film the performances to be uploaded onto websites and social media sites.” In 2015, the English court ordered Comcast to disclose to Hourani the identity of the users of a particular IP address.
After Hourani served the order on Comcast, Comcast notified it subscriber, who refused to consent to disclosure of his or her identity and who threatened suit under the Communications Act, 47 U.S.C. § 551. Under the act, a cable operator cannot disclose personal identifying information without the permission of the subscriber or a court order. (I wrote about a § 1782 application that had § 551 implications in July 2011). So Comcast brought an action seeking a declaration that it had not obligation to comply with the English discovery order and that it could only comply with the discovery request if a US court, acting under § 1782, ordered discovery.
In its initial decision, the court held that Comcast could not comply with the English discovery order without an order of the US court under § 1782, and it went on to find that the requirements of § 1782 were met and granted “Comcast’s petition under § 1782.”
But in the second decision, the court vacated its first order, again held that the English order was not enforceable against Comcast directly, but denied relief under § 1782. The judge exercised her discretion to deny relief for two reasons. First, the subscriber objected to the disclosure. It’s unclear why the subscriber’s objection bears on the § 1782 analysis. Second, the English court’s order apparently contained a scrivener’s error, seeking the identity of the subscriber for a period in 2015 instead of in 2014. The judge did not think she could look behind the face of the order.
One issue not fleshed out in the decision is the basis of the UK court’s jurisdiction over Comcast in the first place. Does Comcast do business in the UK? It’s not really clear to me why the UK court thought it had the power to make discover orders to compel Comcast to produce documents.