The case of the day, CTB v. Twitter, Inc., comes to Letters Blogatory courtesy of a hat-tip from the Trial Warrior Blog. “CTB” is a pseudonym for a British soccer player (I wouldn’t have any particular compunction about reprinting the name if I knew it, but I don’t). CTB sued a British newspaper and the model Imogen Thomas seeking an injunction to prevent the naming of CTB in the media in connection with an allegation that he had had an affair with Ms. Thomas. The court granted the injunction, relying on Article 8 of the European Convention on Human Rights, which guarantees the right to privacy.
Unsurprisingly, after the court issued the injunction, Twitter users publicized CTB’s name in connection with the allegations all across the internet. It’s somewhat shocking that CTB and his lawyers thought that they could solve CTB’s problem with an injunction in the internet age, but there it is. Rather than learning this lesson, though, CTB has doubled down. He has now sued Twitter. It’s not precisely clear what relief CTB is seeking—apparently the complaint itself cannot be disclosed, or has not yet been disclosed—but Charles Russell speculates that
it must be an application to commit to prison the persons, including Twitter, for aiding and abetting the breach of the original injunction against The Sun (NGN Limited) and Imogen Thomas (and thus being themselves in contempt of court). Rather than prison, the disobedient parties can be subject to an unlimited fine and the court can order any act to be done at their expense.
Why is this case potentially within the Letters Blogatory Scope of Coverage? It’s not because of the claim that Twitter is in contempt of the injunction. If the English court has jurisdiction over Twitter, it can punish Twitter for contempt of the injunction without raising any obvious private international law issues. If the English court lacks personal jurisdiction over Twitter, then it can’t. I don’t see a judicial assistance issue there.
Rather, the case is potentially relevant for Letters Blogatory purposes because it’s possible that CTB will seek to compel Twitter to reveal the names of the Twitter users who published the allegations concerning CTB. It may be necessary for CTB to seek judicial assistance from the United States to make this happen.
If CTB were seeking the contents of the offending Twitter messages, then the SCA would likely preclude the discovery. 18 U.S.C. § 2702. But non-content information, e.g., user identities, may be discoverable using a civil subpoena under 18 U.S.C. § 2703, which generally regulates governmental entities’ requests for non-content information. I should point out, though, that to my knowledge the statute has not been applied in the judicial assistance or Evidence Convention contexts.
Assuming there is no SCA issue,it seems to me that the user identities are in principle discoverable via a request for judicial assistance, absent constitutional concerns. There is, however, a substantial constitutional issue, namely, the First Amendment implication of denying an internet user the right to post messages anonymously. There’s a summary of many of the cases in § 9:131 of Brownstone’s Data Security and Privacy Law: Combating Cyberthreats, which is available on Westlaw and elsewhere. So CTB should expect a fight.
If CTB proceeded under the judicial assistance statute, without a letter of request, then the court would have to face another issue before the subpoena was even issued, namely, whether it should, in its discretion, refuse the request to issue the subpoena. While I don’t know of any cases, I suspect that where the purpose of the discovery is to identify anonymous Internet users so that they can be pursued in England for breach of the injunction, and where the injunction would likely be inconsistent with the First Amendment if entered by a US court, the court may be tempted to refuse to provide judicial assistance. If, on the other hand, CTB proceeded via a letter of request under the Evidence Convention, then the court’s discretion may be more limited under Article 12:
The execution of a Letter of Request may be refused only to the extent that –
a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or
b) the State addressed considers that its sovereignty or security would be prejudiced thereby.
Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it.
So while foreign plaintiffs often opt to proceed under the statute without worrying about obtaining a letter of request from the foreign court, in this case I think CTB might be well-advised to proceed via the Convention.