Jurisdiction and Choice-of- Law Questions Arising in the Process of Unmasking Anonymous Online Authors (subject to further revisions) Koji Takahashi Doshisha.

Jurisdiction and Choice-of-Law Questions Arising in the Process of Unmasking

Anonymous Online Authors(subject to further revisions)

Koji TakahashiDoshisha University Law School (Kyoto, Japan)

Internet access

provider

Anonymous or

pseudonymous

authorHost

Server

Website

Injured person

④ Injunction or damages

③ Disclosure of the subscriber’s name

② Disclosure of IP address and time stamps

①　 Posting of defamatory contents

Stakeholders

• Injured person• Access to justice.

•Author•Maintaining anonymity.

• Internet service providers (ISP)• Not in maintaining the author’s anonymity.• Avoiding liability towards the author for breach of duties of

confidentiality.• Exempted if obey court orders.

Japan: Legal base of disclosure order

• Statutory right against ISPs.Any person alleging that his rights were infringed by distribution of information via telecommunications may demand telecommunications service providers to disclose information enabling the identification of the sender of the information, if:(i) it is clear that the alleged infringement has taken place; and(ii) there is a justifiable reason for obtaining the disclosure, as where the information sought is necessary to claim damages.

• Substantive right: may be asserted in and outside courts.

Japan: choice of law

•May be asserted only where Japanese law is applicable under the Japanese choice-of-law rules.•Characterised as tort.• Somewhat awkward since the claim is not for

pursuing ISPs’ liability for tort.•Application as an overriding mandatory rule of the forum?

Japan: Jurisdiction• Disclosure order against Twitter Inc., a California company

(Tokyo District Court, 4 July 2013) • The Japanese version of “doing business” jurisdiction:

“The actions set out in each item below may be filed with the courts of Japan in the circumstances described in each of them. …(v) An action against a person doing business in Japan … : in the circumstances where the action relates to the business in Japan.”

• Not require a fixed place of business in Japan. Capable of capturing business activities conducted from outside Japan by means of internet. Also relied upon in cases against other foreign ISPs, e.g. Facebook.• Available irrespective of the legal nature of the claim.

France: Legal bases of disclosure order

• Trust in Digital Economy Act, Article 6 II(1) [The internet service providers] hold and retain the information enabling the identification of any person who has contributed to the creation of the content of services of which they are providers.(3) The judicial authority may require [the internet service providers] to disclose the information mentioned in the first paragraph.

• Code of Civil Procedure, Article 145If there is a legitimate reason to preserve or to establish, before any legal process, the evidence of the facts upon which the resolution of the dispute depends, ... preparatory inquiries may be ordered at the request of any interested party ....

France: UEJF v. Twitter Inc. (Tribunal de grande instance de

Paris, 24 January 2013)• Twitter Inc., a California company, did not dispute jurisdiction.• Twitter contested that it was subject to the obligation to retain

information under the Trust in Digital Economy Act, arguing that it did no more than required by the law of California.• Twitter disputed that the provisions of the Act were overriding

mandatory rules.• The court did not find it apparent that Art. 6 II of the Act was

applicable in the present case. • The court relied on Art. 145 of the Code of Civil Procedure to order

disclosure, finding it to be applicable in international cases.

France: commentaries on the case

•Regretted that the courts did not clarify the applicability of Article 6 II of the Trust in Digital Economy Act to foreign providers.• The application of Article 145 of the Code of Civil

Procedure would have been better justified on the basis that the French courts had jurisdiction.• France was the place of injury, as the offending tweets,

written in French, were received in France.

US: Legal base of disclosure order

• The anonymous author may be sued in the name of “John Doe.”• A discovery order, called “Doe subpoena,” issued to ISPs. • Being a procedural order, raises no choice-of-law question.• Debate focused on jurisdiction over Doe rather than ISPs. • In details, no uniform approach within the US.

In re John DOE a/k/a “Trooper” (Texas Supreme Court, 29 August 2014)

• A petition requesting Google Inc., a California company, to disclose the identity of a pseudonymous blogger.• Under Rule 202 of the Texas Rules of Civil Procedure, which allows “a proper

court” to authorize a deposition to investigate a potential claim.• The notice was sent to the blog email address. The blogger filed a special

appearance, asserting that his tenuous contact with Texas.• The Court held that “a proper court” must have personal jurisdiction over the

potential defendant. • The Court recognised the burden on the plaintiff could be heavy where the

potential defendant's identity was unknown.• But the Court refused to “interpret Rule 202 to make Texas the world's inspector

general.”

Malcolm v. Doe 1 et al.(California Court of Appeal, 29

March 2013)• Third party discovery was initiated against WordPress.com, a

California company, which hosted the offending blog.• Affirmed personal jurisdiction over the defendants because they had

“purposefully avail[ed] themselves of the services of a company located in the State of California.”• Notwithstanding that the plaintiffs were English local politicians and

initiated the discovery to learn if their political rival was the author.• cf. Melvin v. Doe (Virginia Cir. Ct., 24 June 1999)• Quashed a subpoena against America On Line, a Virginia company.• The “minimum contacts” requirements were not satisfied since the effects of

the defamatory posting were felt more in Pennsylvania.

England: Legal base of disclosure order

• Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] AC 133

“If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.”

• It is (presumably) a procedural order, raising no choice-of-law question.• Questions of jurisdiction over ISPs featured in a few cases.

England: Lockton Companies International v Persons Unknown, Google Inc [2009] EWHC

3423•Norwich Pharmacal relief was sought against Google Inc., a California company.•Affirmed jurisdiction over Google as “a necessary and proper party” (Practice Direction B3.1(3)) to the claim against the anonymous first defendants.• The latter were likely to be in England from the

nature of the offending communications.

England: Bacon v Automattic Inc and others

[2012] 1 W.L.R. 753• Norwich Pharmacal order was sought against the

defendants, U.S. companies, who hosted the websites on which defamatory statements were anonymously published.• “The claimant applies for permission to serve the claim form

out of the jurisdiction, on the grounds specified in paragraph 3.1(2) of Practice Direction 6B … : a claim is made for an injunction ordering the defendants to do an act within the jurisdiction, namely disclose to the solicitors the information sought.”

Recap•A disclosure order based on a substantive right: Japan,

French Trust in Digital Economy Act• Both choice-of-law and jurisdictional questions arise:

whether the rules for tort are available.•A procedural disclosure order: in the US, England and

France.• Subject to the lex fori. No choice-of-law questions arise.• Jurisdiction• over a suit against the anonymous author: US• over a suit against the ISPs: England (and France?)

Necessity for enforcement abroad:

ISP’s willingness to comply•Bacon v Automattic Inc and others [2012] 1 W.L.R. 753

“Unfortunately, the Wikimedia foundation does not disclose personally identifying information regarding its users absent US subpoena. Please note that we do not comply with foreign subpoenas … due to the varying standards and requirements of courts from country to country. There is a procedure by which you can have a foreign subpoena recognised by US courts.”

Necessity for enforcement abroad

Limitation on enforcement jurisdiction• Yelp, Inc. v. Hadeed Carpet Cleaning, Inc. (Virginia Sup. Ct., 16 April

2015)• Circuit Court held Yelp, a California company, in civil contempt for refusal to

comply with a Doe subpoena.• Supreme Court reversed, holding that jurisdiction to enforce a subpoena

existed only if the witness resided or maintained an office in the State.• Brief of Amici Curiae Automattic, Facebook, Google, Tripadvisor and Twitter

(2015): “If any online service … could be forced to appear in any court in any state just because one of its users was subject to suit in that court, the resulting burden on the nonparty providers would divert resources from innovation to litigation.”• But did not quash the subpoena “since Hadeed may choose to seek

enforcement of the subpoena … in California.”

California: Enforcement of foreign subpoenas

Interstate and International Depositions and Discovery Act

• § 2029.300. Issuance of subpoena(a) To request issuance of a subpoena under this section, a party shall submit the original … copy of a foreign subpoena to the clerk of the superior court in the county in which discovery is sought to be conducted in this state. …(c) … the clerk shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

• § 2029.600. Application to court(a) If a dispute arises relating to discovery under this article, any request … to enforce, quash, or modify a subpoena … may be filed in the superior court in the county in which discovery is to be conducted and, if so filed, shall comply with the applicable rules or statutes of this state.

Enforcement of foreign disclosure orders

• § 2029.200. DefinitionsIn this article:(a) “Foreign jurisdiction” means either of the following:(1) A state other than this state.(2) A foreign nation.

• Bacon v Automattic Inc and others [2012] 1 W.L.R. 753A witness statement of a California counsel: “a Norwich Pharmacal order may be enforced in California as provided in the recently enacted Interstate and International Depositions and Discovery Act”

• cf. Uniform Interstate Depositions and Discovery Act (2007)“The committee decided not to extend this Act to include foreign countries …. The committee felt that international litigation is sufficiently different and is governed by different principles …”

What the law should be?

• The anonymous author’s stake is greater than the ISPs. •Allow discovery in a suit filed against the anonymous

author, with the latter being allowed to contest jurisdiction without revealing his identity.• The enforcement of a disclosure order should be

possible under a simple procedure, e.g. Californian Act.