Following a Court Order, Twitter inc handed over details of the owners of Twitter accounts to South Tyneside Council.
The Sunday Telegraph wrote this up with the headline:
“Twitter reveals secrets: Details of British users handed over in landmark case that could help Ryan Giggs”
A similarly excited tone was taken by the guests on on Sky News’ Murnaghan programme this morning.
I’m pretty sure that the media are getting this completely wrong and want to look at the differences between the South Tyneside case and the Giggs case – or indeed, any of the privacy superinjunctions.
The South Tyneside case in brief
I don’t want to spend any time on the wisdom of South Tyneside Council bringing this case. Briefly, councillors on South Tyneside council believed that they were being libelled on Twitter and on blogs by others, including some other councillors. Acting for the allegedly-libelled councillors, South Tyneside Council brought a case in a California court to order Twitter to hand over information about five Twitter accounts linked to the alleged libel.
What has been handed over?
Twitter’s own Terms and Conditions explain when it will hand over data, and what data it will hand over (emphasis added):
Private information requires a subpoena or court order
Request User Information
Twitter, Inc. is located in San Francisco, California and will only respond in compliance with U.S. law to valid legal process.
Important points here are:
- Twitter anticipates that sometimes it will be forced to hand over data by a court order.
- Twitter doesn’t have very much data to hand over – just whatever name the account user gave them, an email address, maybe a mobile phone number (all of which could be fake), private messages (if any) and IP addresses of recent logins
- Twitter only responds to US law and is based in California
South Tyneside Council would have been passed this data after winning their case, but if the name and email address are fake and there aren’t any private messages then the only thing of use that Twitter has given them is IP addresses. The council will probably have to trace the IP addresses back to Internet Service Providers, and then get additional Court Orders to force the ISPs to hand over data to link these addresses to an actual person. If the original tweeter was using an anonymising proxy to access the Internet and obscure his IP, then this whole legal journey will come to a dead end.
Despite the over-excited media coverage, it’s routine for Internet services of all types to hand over identifying information for the purposes of libel proceedings, and it’s routine for courts to order that release. From personal experience at trying to degrade terrorist web use in 2004-6, Internet companies in the USA will stand up for free speech, protect racism and pro-terrorist sites and ignore requests from the police, but will act immediately if the issue is a civil one like copyright breaches or libel.
Why this won’t help Ryan Giggs
This case is totally different from the Giggs case except for the involvement, in some way, of Twitter.
- In the Tyneside case, the issue is libel, which also exists in US and Californian law. In the Giggs case, the issue is a newly-developed right to privacy that has no direct parallel in US law.
- In the Tyneside case, the central claim is that the councillors have been libelled – that is, that someone is lying about them. In the Giggs case, the original injunction was to prevent the release of true but private information. Giggs couldn’t sue the tweeters for libel unless their comments were false.
- The Twitter accounts in the Tyneside case were assumed to be anonymous (actually, some of them weren’t). The majority of the 75,000+ tweeters who named Giggs before John Hemming named him in Parliament aren’t anonymous; they are the personal accounts of ordinary users complete with names and photos. No need to get a court order to identify them.
- The Giggs case – in fact, all injunction and superinjunction cases – are about prior restraint on speech. In the USA, prior restraints are generally unconstitutional under the First Amendment; people can be punished for what they say if they libel someone, but not prevented from saying it.
- One extra point: the user in the South Tyneside case didn’t fight the council’s court order, even though Twitter offered him the chance.
Lots of high-minded commentators are saying that the South Tyneside case proves that Twitter is not above the law. Who ever said it was? Twitter didn’t – its extensive terms and conditions show that.
The question for the injunction-breakers is “Would a US court order the release of data in a case which isn’t prosecutable under US law?”. As there’s no sign whatsoever that they would, the Giggs tweeters can relax on that account. However, those who can be identified from their profiles without a court order could be prosecuted under English law for Contempt of Court anyway.