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May 23, 2011

Banned in (much of) Britain, And Beyond?

(cross posted at the Citizen Media Law Project)
Social media are abuzz about a English Premier League footballer ("soccer player" to us Yanks) Ryan Giggs, who has obtained an order from a British court requiring Twitter to reveal the identity of various tweeters who identified him as having had an affair with model and Big Brother contestant Imogen Thomas.

The court's order against Twitter was based on a prior order issued by the court last month, which barred The Sun and other newspapers from revealing the name of the player. At the initiative of lawyers for plaintiffs in defamation cases, British courts began issuing such "super injunctions" -- which bar not just disclosure of the information subject to the order, but also ban disclosure of the order itself -- in 2008, with the number of such orders increasing ever since.  (The Guardian newspaper detailed some of the initial super injunctions, while the magazine Private Eye lists several recent examples.) The growth of such orders has become a political issue in Great Britain, and there is talk of eliminating such orders.

Despite the original order barring publication of Giggs' identity, a reporter for the London Times sent several tweets naming Giggs and joking about his situation. This led the judge who issued the order to refer the reporter's violation to the Attorney General.

Gigg's name was widely distributed on Twitter and blogs, leading the player to seek the second court order against Twitter. The second order garnered even more attention, including coverage by The New York Times.

Then, the Scottish newspaper The Sunday Herald published the player's name contrary to the initial order.  While the Herald is apparently protected by the fact that orders from courts in England do not apply in Scotland, the Attorney General nevertheless pledged to investigate with an eye towards prosecution. The High Court refused an effort to lift the injunction, after which MP John Hemming named Giggs on the floor of the House of Commons.  Though his disclosure violated the injunction, Hemmings is apparently protected by the Parliamentary privilege.  And by making his statement in a parliamentary session, Hemmings put Giggs' name on the public record, perhaps allowing the media to name him without running afoul of the injunction. (Although a judicial committee report coindidentally issued three days before concluded that journalists could still be prosecuted for reporting on such statements.) The Attorney General then announced that another committee would examine the entire question of "super injunctions."

Thus the footballer's saga is a familiar example of the Streisand effect, in which efforts to ban discussion of a subject actually end up attracting more attention to the banned material.

But does Twitter have to comply with the second order, seeking the identities of the Twitter posters?

While Twitter has users worldwide, including Britain, it is an American-based company.  Thus, as a corporate entity, it is not subject to the jurisdiction of a British court.

Courts in both California and New York -- the states in which Twitter currently has offices -- have ruled that foreign court judgments involving free speech can be enforced in the United States only if the foreign nation recognizes First Amendment values.

A federal court in California held that a French court order barring Yahoo! from selling Nazi memorabilia could not be enforced in an American court without violating the First Amendment. Yahoo!, Inc. v. La Ligue Contre le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181, 1192 (N.D. Cal. 2001), rev’d en banc on other grounds, 433 F.3d 1199 (9th Cir. 2006) (en banc), cert. denied, 547 U.S. 1163 (2006). An appellate court then ordered dismissal of the case on jurisdictional and ripeness grounds. 

In New York, in Bachchan v. India Abroad Publ’ns, Inc., 154 Misc.2d 228, 585 N.Y.S.2d 661 (N.Y. Sup. Ct. 1992), a trial court declined to enforce a British libel judgment, based on a New York statute which provides that “[a] foreign country judgment need not be recognized if . . . the cause of action on which the judgment is based is repugnant to the public policy of this state . . . .”  N.Y. C.P.L.R. 5304(b)(4).

Another factor are laws in California and New York, as well as the recently passed federal SPEECH Act [Securing The Protection of Our Enduring and Established Constitutional Heritage Act] of 2010 (28 U.S.C. §§ 4101-4105). These laws bar courts from enforcing foreign defamation judgments from nations that do not provide free speech and press protections similar to those provided in American courts. While these laws apply only to foreign defamation judgments, they do express a legislative intent to protect American individuals and companies from foreign judgments that do not recognize the value of free speech. The federal statute, for example, includes the Congressional finding that  
Some persons are obstructing the free expression rights of United States authors and publishers, and in turn chilling the first amendment to the Constitution of the United States interest of the citizenry in receiving information on matters of importance, by seeking out foreign jurisdictions that do not provide the full extent of free-speech protections to authors and publishers that are available in the United States, and suing a United States author or publisher in that foreign jurisdiction.
Pub. L. 111-223 (2010), § 1 (codified at 28 USC § 1, note).

Twitter's imminent plans to open a London office could complicate this analysis. With an office -- or a subsidiary with an office -- in England, Twitter may not be able to avoid complying with an English court order, other than by challenging it in a British court. It may also not want to defy the order on the eve of opening an office in the U.K., as a matter of corporate policy and public relations.  (This is similar -- albeit less stark -- to the dilemma the China poses to Internet companies; including Google, which eventually pulled out of that country.)

The point is that American Internet companies are increasingly going to be vulnerable to foreign court orders and judgments, especially as they expand their operations and physical presence beyond American shores.  And the companies' vulnerability could also make their users -- both in the United States and elsewhere -- similarly vulnerable to rulings by courts that may not have the same respect for free speech that American courts have found in applying the First Amendment.

As content, and the companies that provide it, go global, so does the possibility of courts around the world trying to control that content.

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