ARE SOCIAL MEDIA INJUNCTIONS COMING TO IRELAND?

For anyone blogging on superinjunctions and social media, they seem to be the gift that just keeps on giving. First there was the emergence on Twitter of the details that the superinjunctions were trying to keep secret, then attempts by the UK courts to name the social media sites themselves in the injunctions. Of course things have gone off the deep end completely since a footballer the subject of such an injunction granted in England and Wales was first identified in the Scottish press and then named under privilege in the House of Commons.

My main point in all of this has been the futility of trying to achieve the impossible by injunctions. Attempts to control secrets of a different nature by injuctions were publically pointless as far back as the Spycatcher affair. Peter Wright’s book was banned in Britain but widely available abroad. In days before the viral spread of information via the internet, travelers returned to the UK proudly brandishing the book purchased abroad. Now of course you don’t have the leave the comfort of your smart phone to have access to a global pool of information.

However, you may have to travel abroad not to obtain copies of a publication unavailable in your jurisdiction, but to obtain injunctions capable of enforcement against the sites facilitating the publication that you are unhappy about. Three councilors and an official at South Tyneside Council have now travelled to the 9th Circuit Court in California and obtained an order against Twitter there compelling the microblogging site to reveal details of five Twitter accounts held by users in the UK by whom they allege they have been libeled in tweets. This is believed to be the first time that the social networking site has been forced to provide details about users in the UK and what’s more Twitter has stated that it will release details if legally required to do so. And so it should.

As has been rightly pointed out by Rossa McMahon, there is a world of difference between being unable to comply with an order of a court and simply deciding not to do so. Moreover, just because damaging lies can be easily (and widely) published on the internet anonymously doesn’t mean that there shouldn’t be consequences for doing so. But as a growing array of celebrities and footballers are learning at great expense even the most high powered lawyer and fearsome court order can’t put the sauce back in the bottle.

So once the story is out, is your only remedy pursuit of the person responsible for publication of the secret or falsehood in the first place. As any experienced commercial litigator will tell you the first rule in commercial litigation is that the person you are suing has to be able to pay. The second is that you must understand and be very focused on what you want (and can realistically expect to get) from the process. The third is you must never confuse winning the battle with the outcome of the war.

An order against a site to reveal details is a major breakthrough, but the process is only going to be worth engaging in if those details lead you to someone from whom you can get satisfaction. Only the very wealthy (or the state funded) are going to have the resources to engage in speculative litigation in the 9th Circuit Court in California and even then you have to wonder what they could ultimately hope to get out of it.

Though in certain instances, globalised corporate presences may result in the mountain coming to Mohammad. Mark Zuckerberg was in Dublin on Friday and was pictured hefting a hurley (or a hurl depending on which part of the island you hail from). What made the Facebook pictures all the more remarkable in Saturday’s Irish Times was their position over the headline to an article reporting that multimillionaire business man and race horse owners JP McManus initiated proceedings in the High Court in Dublin on Friday also seeking an injunction compelling Facebook to take down three identified Facebook profiles claiming to be Mr McManus.

Apparently Mr McManus alleges that his solicitors went through the procedure required by Facebook to verify his identity and to have the imposters removed but when they concluded that process they ended up back at the start. They have now retained former attorney general (and very clever man!) Paul Gallagher SC and have commenced the steps required to seek an injunction in Ireland compelling Facebook to remove the offending profiles on the basis that they are in breach of Mr McManus’s constitutional rights under Article 40 of the constitution and in breach of the Data Protection Act, 1988 among many other things. This litigation is in its opening skirmishes only – the application on Friday was merely to shorten the time for service of the main application and it is due back in court tomorrow. This case will be very interesting to watch to see how the Irish courts come to terms with the practical aspects of the social media phenomenon.

But what is perhaps most significant about the case is that Facebook has a base in Dublin and 200 employees here. So whatever the outcome it is subject to the jurisdiction of the Irish courts and any order made here will be capable of enforcement against Facebook locally. Watch this space…