Frank Sommers is the US-based lawyer for @UnSteveDorkland, the anonymous individual behind a Twitter account parodying Northcliffe chief executive Steve Auckland which prompted a legal action from the publisher.
Readers may have already forgotten what ‘Northcliffe Seeks Spoof Twitter Account Owner’s Identity‘refers to. Before that happens, let’s talk about what we should learn from the public relations train wreck caused by Northcliffe Media Ltd’s attempt to find out who was mocking its CEO on Twitter.
To compel disclosure of an anonymous critic’s identity from Twitter or any other third party, the claimant must be able to plead facts (not conclusions) that support all the elements of a defamation claim.
Without a factual pleading setting out those elements, what the claimant is trying to do is serve a subpoena and hoping that no-one will point out the lack of facts – very risky.
The Northcliffe versus John Doe matter had nothing to do with whether the internet permits one private citizen to defame another, as much as Northcliffe tried to argue that it did.
This case was about whether the internet should be set up and regulated to protect an individual who is criticising a powerful public figure should be permitted to do so anonymously in order to avoid retribution. The two cases are quite different, at least under US law.
Counsel may state that the public will support an effort to unmask the mocker, because anonymous defamation is offensive. While that is certainly true when private citizens are involved (a child being defamed by anonymous classmates), that is not the standard applied when public figures are targets.
Even if the ‘victim’ has only chosen to speak out on one issue, criticism of that issue is protected by the First Amendment of the US Constitution, and as a result, the litigant will have to prove ‘actual malice”, a knowingly false statement intended to harm the target. As interpreted in the US, this is a very high bar.
Finally, it is critical not to become distracted into seeing Twitter as an actor in the drama which callously failed to protect ‘UnSteve’.
The firm, like any third party holder of user information, is merely a target for the subpoena. The stakeholder has no obligation other than to notify the account holder of the impending disclosure.
This is the flaw in data protection schemes in the US. If the owner cannot secure representation, then Twitter or its brethren are free to reveal the information after the requisite delay.
This is the flaw that Northcliffe sought to exploit – it costs significant sums to hire private counsel to resist these suits.
It seems that Northcliffe was attempting to duplicate the very conduct its ‘big brother’ the Daily Mail had derided when Tyneside’s city council sought to learn the identity of an anonymous critic (‘Cash-strapped council spending £250,000 of public money in US courts to silence Twitter ‘whistleblower’ may have an awful lot to hide’– www.snipurl.com/24nw0j7).
Once opposition appeared, Northcliffe folded its tents and stole away. It could have amended its claims to state facts, but it chose to leave the field, trailing claims of wanting to ‘protect its employees’from ‘cyber bullying and harassment’- the very scrum it alleged without being able to support its claims with facts.
In America, the expression is ‘put up or shut up.’Northcliffe appears unwilling to do either.