Summary
In the recent case of Parcel Connect Limited trading as Fastway Couriers and A & G Couriers Limited v Twitter International Company, Mr Justice Allen made an Order directing Twitter to provide details it holds in relation to the identity of the creator or controller of a parody account.
Background
The Plaintiffs operate logistical services including courier distribution under the name Fastway Couriers. In 2019 the Plaintiffs became aware that a Twitter account was created by a third party using their logo and initially the handle @fastwayIRE.
The Plaintiffs' proceedings sought a Norwich Pharmacal Order and a number of injunctions, including an order that the account be removed from Twitter. A Norwich Pharmacal Order is an action by an injured party against another party who may not have committed any wrong, but due to a connection to the events surrounding the wrongdoing, they may be able to identify the wrongdoer. These orders are not commonplace, with the party seeking such an order being required, as laid out in Megaleasing UK Ltd. v. Barrett [1993] ILRM 497, to establish a very clear and unambiguous case of wrongdoing, and, more recently in O’Brien v. Red Flag Consulting Limited [2017] IECA 258, a strong prima facie case.
The Court heard that following correspondence from the Plaintiffs, the account in question was suspended by Twitter for a few days before being restored as it did not violate its terms of service or rules. Counsel for Twitter explained to the Court that the account had now been deactivated by the account holder. Twitter said it had no obligation to monitor, and is not the arbiter of, the material posted on its platform and will not release user information without a court order. As to whether such an order should be made, Twitter stood silent.
Decision and Commentary
Notwithstanding the fact that Mr Justice Allen was not entirely convinced that the account was masquerading as the Plaintiffs, he felt there was good grounds for their complaint. The Judge was persuaded that the Plaintiffs have a case to make that the postings mean they are incompetent and inefficient, the use of the Fastway logo infringes on its trademark and that a strong prima facie case has been made that the goodwill in the name and mark has been damaged by its use on the account and its association with the comments posted.
In making the Order that Twitter disclose details it holds regarding the account holders, Mr Justice Allen followed the case of EMI Record Ireland v Eircom Ltd [2005] 4 IR 148 by ruling that this Order was expressly conditional on an undertaking by the Plaintiffs that information disclosed would be used solely for the specific purpose it was sought in respect of the wrongs complained of.
This case demonstrates the circumstances where a Court may grant a Norwich Pharmacal Order and applies the prior tests to be met.
