Privacy, Data Protection and Retention
Data Protection Commissioner v. Facebook (Schrems II)
Closed Contracts Expression
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The Supreme Court of New South Wales granted a worldwide injunction operative ‘everywhere in the world’ against Twitter, proscribing publication of tweets having confidential information of the plaintiff. The plaintiff had approached the Court to restrain the defendants from publishing offending tweets containing sensitive financial information, to remove them from the Twitter platform and to suspend ‘fake’ user accounts. Rejecting Twitter’s contention that proactive monitoring of user content was not feasible for the company, the Court considered it appropriate to exercise its discretion in issuing a worldwide order. It held that reservations concerning the utility of the order were outweighed by the unconscionable conduct of the account holder as well as Twitter’s commercial interest in compliance with the law and the public interest in showing that it can remedy unlawful conduct.
The Defendants, Twitter Inc. (a Delaware based corporation handling operations in the United States) and Twitter International Company (an Irish corporation overseeing Twitter’s operations globally, excluding US) operate a global microblogging service. Between May 16 to May 19, 2017, a fake twitter handle adopting the name of the plaintiff’s CEO was first used to disclose confidential financial information pertaining to the plaintiff. The Plaintiff, X (identity suppressed), immediately approached the defendants to remove the offending material from Twitter’s website, along with a request to deactivate the user account, prevent user from publishing further confidential information and disclosure of the identity and contact information of the user operating the account.
Responding to the request, Twitter promptly removed the reported account for contravention of its rules. Another set of tweets appeared from a separate impersonated account on June 13 following the same pattern as before. Upon plaintiff’s request, Twitter permanently suspended the user account, again. The compromising tweets continued to appear in August, with eleven tweets on August 27 from an account named after a provocative descriptive noun indicative of the nature of the conduct being undertaken. This time, however, Twitter refused to take down the content, arguing that there was no impersonation and thus, no violation of its terms of service. A barrage of increasingly bold and threatening tweets appeared again on September 3, 2017, but Twitter refused to take them down for similar reasons as before.
Notably, the request for information on the user’s identity and contact details was also rejected by Twitter, citing want of a valid legal process. The plaintiff had requested the information on the ground of a valid cause of action against the user for breach of confidence.
Aggrieved by defendants’ refusal to take down the offending tweets, the plaintiff commenced proceedings for grant of an initial interlocutory injunction before the Supreme Court of New South Wales. The request was granted by the Court by an order dated September 6, 2017, whereby, Stevenson J. ordered Twitter to restrain from publishing the offending material, remove them from its platform and suspend users of three accounts used to post confidential information. Further interlocutory orders were passed by the Court on September 8, 2017 as well.
Based on the interlocutory injunction, the fourth round of offending tweets appearing on September 9 and 10 were effectively taken down. A final hearing on the issue was conducted on September 15, 2017 by the Court.
Judge Pembroke delivered the opinion of the Supreme Court of New South Wales. The substantive issues before the Court concerned the jurisdictional basis to grant ex parte injunctive relief against foreign defendants as well as the effectiveness of worldwide takedown orders.
At the outset, the Court did not delve into any claims against the illegality of offending tweets, noting that the information was confidential, there was a contractual obligation on all partners and employees of the plaintiff to keep information confidential and a continuing corresponding equitable obligation post cessation of partnership or employment to adhere to strict obligations of confidence.
With respect to the defendants, it was observed by the Court that a direct cause of action arose as soon as Twitter came into possession of confidential information and was put on notice of its character. Twitter was therefore bound to restrain any publication of such confidential information unlawfully obtained by virtue of an extended application of the equitable obligation of confidence.
Next, the Court considered its jurisdiction to grant injunctive relief. Twitter had chosen not to participate in the proceedings or to submit to the jurisdiction of the court. However, the Court felt that Twitter’s presence in New South Wales was not a prerequisite to jurisdiction in the present case, particularly since a statutory jurisdiction over foreign defendants was acquired in certain special cases – such as where the claim was for a breach of contract, or an injunction to restrain performance of any act in Australia, a claim founded on a cause of action in Australia or any combination of the above. To that extent, ‘submitting’ to the jurisdiction of the Court was a redundant exercise.
Interestingly, for injunctions extending their scope beyond Australia, the Court sought to base its authority on its longstanding jurisdiction to grant in personam orders. It cited X v Y & Z  NSWSC 1214 to support this claim. According to the Court, this authority was discretionary, grounded on the circumstance that the defendant being amenable to the Court’s jurisdiction can be personally directed to act or not to act. Thus, the plaintiff derived its right from the unconscionability of the exercise by the defendants of their legal rights.
On account of its absence, Twitter had submitted its contentions by an email dated September 8, 2017 where it had cited Macquarie Bank v Berg  NSWSC 526 to dismiss the aforementioned injunctive powers of the Court beyond its territorial jurisdiction. However, Judge Pembroke refused to take that into account due to the special considerations involved in that case (Macquarie was a defamation case involving an attempt to ‘superimpose the statutory defamation law outside the jurisdiction of New South Wales’, which the court felt was not coextensive with the defamation law of other nation states) [p. 8].
Irrespective of the exorbitant authority assumed by the Court and detailed above, it was nevertheless wary of the international reach of its injunctions. Twitter had contested that it was practically impossible for it to proactively monitor user content posted by more than 300 million active users. This raised crucial concerns for the defendants, as the order of the Court dated September 6, 2017 required them to restrain publication of ‘any further tweets posted on the Twitter platform or the defendants’ websites by any person who is the user of one or more of the accounts’ with the same Twitter handle as had been used for the previous tweets… ‘including any new account opened by such a person’ [p. 8]. It was problematic due to the prospective nature of the order and its unlimited scope as to time and subject matter. Effectively, the plaintiff had requested the Court to make the following orders against Twitter:
Despite questions on the practical utility and onerousness of the orders, the Court deemed fit to grant an injunction in the form proposed by the plaintiff. This was based on several reasons. First, the flagrant violation/breach of the duty of confidence and the fact that the malicious intent was obvious. Second, the possibility of damaging future tweets from the same source (with different handles and new user accounts, perhaps) posed great concern to the plaintiff. In such a circumstance, there was limited practical utility in restraining the scope of the order to only historical information or conduct of existing accounts. More importantly, compliance with the orders restraining future content was rooted not in ‘proactive monitoring’ (as Twitter claimed) or regulation of content as per the Court, but in identifying users who had a demonstrated history of breaching laws. There were also caveats to an effective exercise of instructions of the Court, as defendants were required to adhere to the orders only to the extent such person/s were known by them.
Accordingly, the Court ordered the defendants to apply ‘some degree of filtering’ to ensure the offending materials were not posted, or if they were, immediately removed [p. 10]. Evidently, the Court recognized the practical difficulty on the defendants, but still passed orders – primarily since the defendants had chosen not to put any evidence on record.
It is interesting to note that the Court was less concerned with the compliance of proposed orders in foreign jurisdictions. On a balance of weights, the utility of making worldwide orders was still higher than a proved legal right of enforcement of such orders in other jurisdictions. One of the factors that led the Court to its decision was its confidence that complying with a worldwide order was in the best interests of the defendants. The Court perceived that the success of Twitter’s business model relied on weeding out dishonest persons from the platform, and this was evident in its annual report (where Twitter had detailed its measures to curb spam accounts and reiterated its commitment to user privacy and privacy legislations). Besides, the worldwide orders served another purpose – there was a public interest in ensuring the plaintiff was not left without a remedy.
To avoid any revelation of the identity of the plaintiff and ensure protection, the Court was quick to grant a suppression order, though the same was refused in the case of the defendants citing public interest in open justice.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment contracts expression. Though it is yet to be seen whether the case prompts other courts to exercise their judicial discretion to interfere with how social media companies police their platforms, it sets a strong precedent for intervention by courts to compel and restrain conduct in cases lying at the intersection of free speech and privacy. As the Court notes in the judgment, the equitable principle of the exercise of jurisdiction in foreign territories to restrain publication of information held in confidence is applicable irrespective of the mode of dissemination [p. 6] and it may therefore have potential ramifications for Facebook, Instagram and other social networking/online websites facilitating the posting/uploading of content. The decision is also crucial as it sets a precedent for social media users posting objectionable/harmful content anonymously, by suggesting that their identities could be disclosed depending upon the seriousness of the issue.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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