The High Court did. The case involves an anonymous user impersonating (and apparently misappropriating the likeness of) blogger Donal Blaney. The court evidently reasoned that communicating notice of the injunction through Twitter was the most likely way to ensure that the anonymous user received it.
Federal Rule of Civil Procedure 65(d)(2) provides that injunctions are binding on the parties, their officers, agents, employees, servants, and attorneys, and persons who are in active concert with the same, so long as they “receive actual notice of [the injunction] by personal service or otherwise.” Ohio Rule 65(D) contains analogous language.
There doesn’t seem to be any reason why Twitter could not be the vehicle for providing actual notice to a person being enjoined by an American court. The difficulty is that there is no mechanism built into Twitter itself which would prove actual notice. Twitter does have the direct message function, but you can only direct message people who are following you. And it may be possible, of course, to use computer forensics to demonstrate that someone accessed a link through Twitter, and to use good old-fashioned gumshoe pavement pounding to determine who that someone was. But Twitter lacks a functional equivalent to certified mail/return receipt requested and personal service. In other words, there’s no reason the target of an injunction couldn’t dodge service by denying receipt.
Perhaps a more interesting question is whether Twitter can be used to show constructive notice. To the best of our knowledge no American court has addressed this issue, but the answer is likely yes. For nearly a decade now courts have recognized that email satisfies the service test first described in Mullane v. Central Hanover Bank & Trust in 1950–that a method of service must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to respond.” In cases where a defendant is nomadic or unidentified, for example, many courts have held that email is the method of service most likely to reach the defendant. Where a case involves an anonymous impersonator on Twitter, it seems logical that service by tweet satisfies the Mullane test.
This post was written by Jeffrey M. Nye.
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