Douglas, M. (2017). The exorbitant injunction in X v Twitter. Communications Law Bulletin.

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Communications Law Bulletin Vol 36.4 (December 2017) 11
On 28 September 2017, the Supreme
Court of New South Wales awarded
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directed towards the California-based
Twitter Inc and its Irish counterpart,
Twitter International Company.1
When I became aware of this case,
I was midway through writing an
article dealing with the same set
of facts. On 8 September 2017, in
X v Y & Z,2 the Court continued and
expanded an interlocutory injunction
against anonymised defendants. It
turns out that Y + Z = Twitter.
X v Twitter deals with an increasingly
familiar problem: how can private
individuals have content removed
from the global internet through
procedures of domestic courts?
Background
The plaintiff is an anonymous
partnership, plagued by an
anonymous troll with a vendetta.
Unfortunately for the plaintiff, this
person has access to some of the
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In May, the troll began tweeting
under a handle that adopted the
name of the plaintiff’s CEO. The
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was swift in bringing a complaint;
Twitter removed the content for
violation of its terms of service.
The plaintiff also requested that
Twitter disclose information relating
The Exorbitant Injunction in
X v Twitter
[2017] NSWSC 1300
The Supreme Court of New South Wales has issued a global injunction enjoining overseas
defendants to remove tweets of a corporate leaker…
By Michael Douglas
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a potential action against that person
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refused, appealing to its privacy
policy.
The dodgy tweets continued. When
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of the plaintiff, Twitter removed the
account. But when the troll took on
a nom de plume that did not involve
impersonation, Twitter refused to
comply. The covert campaign of leaks
continued into September.
In desperation, on 6 September,
the plaintiff commenced these
proceedings. That day, Stevenson J
granted an interlocutory injunction
restraining the publication of the
offending material, causing the
material to be removed from Twitter,
and suspending the relevant Twitter
accounts. On 8 September, at an ex
parte hearing, Pembroke J extended
those orders.
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further. It requires the ongoing
removal of any accounts held by the
anonymous troll(s). The Court also
made suppression orders, and a
Norwich order compelling Twitter to
reveal identifying details, including IP
addresses, of the anonymous leaker.
The exorbitant jurisdiction
The defendants refused to appear
in the proceedings. On 8 September,
they sent an email objecting to
the Court’s jurisdiction and the
substance of the orders made.
There was an issue whether the
court possessed jurisdiction in
personam: the authority to bind
the defendants personally. At
common law, in the absence of the
defendants’ submission, jurisdiction
is territorial.3 Pembroke J may have
considered that the defendants
were not present. If so, respectfully,
that may have been a mistake. At
common law, a foreign corporation
may be present by carrying on
business in the forum.4 Recently, in
the Google v Equustek litigation, the
Court of Appeal for British Columbia
held that Google had carried on
business in the forum by collecting
data, providing search services,
and mining AdWords revenue.5 The
court had jurisdiction as a natural
consequence of the global scale
of Google’s business.6ϐ
was not disturbed by the Supreme
Court of Canada7 (noted by Hugh
Tomlinson QC).8
In any event, if the defendants’ email
spoke to the merits of the injunction,
that may have been a submission.9
Jurisdiction in personam may also
be founded on long-arm provisions
authorising service outside of
the jurisdiction.10 For NSW, those
provisions are contained in the
recently-amended UCPR Part 11 and
1
X v Twitter Inc
[2017] NSWSC 1300.
2
X v Y & Z
[2017] NSWSC 1214.
3
Gosper v Sawyer
(1985) 160 CLR 548, 564 (Mason and Deane JJ).
4
National Commercial Bank v Wimborne
(1979) 11 NSWLR 156, 165 (Holland J).
5
Equustek Solutions Inc v Google Inc
(2015) 386 DLR (4th) 224.
6
Equustek Solutions Inc v Google Inc
(2015) 386 DLR (4th) 224, 247 [56] (Groberman JA, Frankel and Harris JJA agreeing).
7
Google Inc v Equustek Solutions Inc
2017 SCC 34.
8 Hugh Tomlinson, ‘Supreme Court of Canada upholds worldwide Google blocking injunction’,
Gazette of Law & Journalism
(5 July 2017) <http://glj.com.au/2885-article>.
9
Vertzyas v Singapore Airlines Ltd
(2000) 50 NSWLR 1, 23 [109] (Knight DCJ).
10 See
John Pfeiffer Pty Ltd v Rogerson
(2000) 203 CLR 503, 521 [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

12 Communications Law Bulletin Vol 36.4 (December 2017)
Schedule 6.11 Service is permitted
where the claim has a prescribed
connection to the forum.
Pembroke J accepted that the Court
possessed in personam jurisdiction
with appeal to the heads of Schedule
6, holding that ‘[a]mong other things,
the injunction sought to compel
or restrain the performance of
certain conduct by the defendants
everywhere in the world. That
necessarily includes Australia’.12
If that proposition is accepted
around the world, then every
court would have jurisdiction to
remove anything from the global
internet. The Equustek case, and
the expansion of the ‘right to be
forgotten’,13 are recent examples of a
trend in that direction.
Not so long ago, this would have
been lamented as involving
‘exorbitant’ jurisdiction.14 The more
modern view is that a court’s long-
arm jurisdiction is not objectionable
per se, but the exorbitant exercise of
jurisdiction may be objectionable.15
The exercise of discretion
It was uncontroversial that the
defendants could owe an obligation
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held that the equitable principle
extends to social networking
services which facilitate the posting
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Further, it was uncontroversial that,
provided that a court of equity has
jurisdiction in personam, conduct
outside of the territorial jurisdiction
may be enjoined.
The issue was whether it was proper
for the court to exercise its discretion
to make the award.
In its email of protest, Twitter
argued that the injunction sought
exceeded the proper limits of the use
of the Court’s powers. It appealed
to Macquarie Bank v Berg,16 where
an injunction to restrain online
defamation was refused, partly
because defamation law is not
uniform around the world. Berg
was distinguished; however, the
Court did not consider comparative
ϐǤ
to the Supreme Court in Google v
Equustek,17 discussion of comity18
was conspicuously absent.
Quite appropriately, the Court
considered the utility of the order.
Equity does not act in vain.19
Extraterritorial enforcement of the
injunction could not be guaranteed,
but Twitter’s commercial interests
suggested voluntary compliance. It
is likely that the global injunction
will be implemented, albeit
begrudgingly, for the sake of
Twitter’s standing in the Australian
market. Rolph predicts that this
‘soft effect of hard law is something
I think we’re going to see more of in
the future’.20
Conclusion
When you attend a bar late at night,
you may pass a large bouncer. That
bouncer could crush your skull. He
does possess that power. But just
because he can do that does not
mean that he should do that. Just
because the court has authority to
do X does not justify X. In my view,
it may be questioned whether X was
ϐX v Twitter.
I’m yet to be convinced that domestic
courts should be so inclined to
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internet. Australian courts might
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then Chinese courts might protect
CPC accounts of the Tiananmen
Square Massacre. It is a slippery
slope argument, but we ought to be
cognisant of the role of reciprocity in
private international law.
11 See Michael Douglas and Vivienne Bath, ‘A new approach to service outside the jurisdiction and outside
Australia under the Uniform Civil Procedure Rules’ (2017) 44(2)
Australian Bar Review
160.
12
X v Y & Z
[2017] NSWSC 1214, [11];
X v Twitter Inc
[2017] NSWSC 1300, [20].
13 See Alex Hurn, ‘ECJ to rule on whether ‘right to be forgotten’ can stretch beyond EU’,
The Guardian
(
online) 20 July 2017 <https://www.theguardian.com/technology/2017/jul/20/ecj-ruling-google-right-
to-be-forgotten-beyond-eu-france-data-removed>.
14
Amin Rasheed Shipping Corporation v Kuwait Insurance Co
[1984] AC 50, 65 (Lord Diplock).
15
Abela v Baadarani
[2013] 1 WLR 2043, 2062–3 [53] (Lord Sumption).
16
Macquarie Bank Limited v Berg
[1999] NSWSC 526, [13]–[14] (Simpson J).
17
Google Inc v Equustek Solutions Inc
2017 SCC 34, [44]–[48] (Abella J, McLachlin CJ, Moldaver,
Karakatsanis, Wagner, Gascon and Brown JJ agreeing), [80] (Côté and Rowe JJ).
18 See
CSR Ltd v Cigna Insurance Australia Ltd
(1997) 189 CLR 345, 395–6 (Dawson, Toohey, Gaudron,
McHugh, Gummow and Kirby JJ).
19 See Norman Witzleb, ‘Equity does not act in vain’: An analysis of futility arguments in claims for
injunctions’ (2010) 32(3)
Sydney Law
Review 503.
20 David Marin-Guzman, ‘Twitter ordered to take action against mysterious corporate leaker’,
Financial
Review
(online) 28 September 2017 < http://www.afr.com/leadership/company-culture/twitter-
ordered-to-take-action-against-mysterious-corporate-leaker-20170928-gyqi42>.
Michael Douglas lectures in private
international law at Sydney Law School.
He is currently researching cross-border
media law issues. This comment first
appeared in the Gazette of Law &
Journalism on 29 September 2017.
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