Parcel Connect v Twitter International Company

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 05 June 2020
• Neutral Citation: [2020] IEHC 279
• Docket Number: [2020 No. 3091 P.]
• Court: High Court
• Date: 05 June 2020

BETWEEN

PARCEL CONNECT LIMITED TRADING AS FASTWAY COURIERS

AND

A & G COURIERS LIMITED

PLAINTIFFS

AND

TWITTER INTERNATIONAL COMPANY

DEFENDANT

[2020] IEHC 279

Allen J.

[2020 No. 3091 P.]

THE HIGH COURT

Norwich Pharmacal order – Disclosure – Defamation – Plaintiffs seeking a Norwich Pharmacal order – Whether the defendant had come under a duty to assist the plaintiff by disclosing the identity of the wrongdoer

Facts: The plaintiffs, Parcel Connect Ltd trading as Fastway Couriers and A & G Couriers Ltd, applied to the High Court for a Norwich Pharmacal order directing the defendant, Twitter International Company, to disclose to the plaintiffs such information as it held relating to the identity of the person or persons who created and/or controlled an account on the eponymous social media platform operated by the defendant. The plaintiffs claimed to have been wronged in a number of respects by entries posted on the identified Twitter account. The premise of the action was that the defendant was responsible for the wrongs complained of. The premise of the application, adopting the formulation of Lord Reid in Norwich Pharmacal v Customs & Excise [1974] A.C. 133, was that even if the defendant was not legally responsible for the wrongdoing - or perhaps whether or not the defendant was a concurrent wrongdoer - it had nevertheless got so mixed up in the wrongdoing of the operator of the account as to have facilitated the wrongdoing that it had come under a duty to assist the plaintiff by disclosing the identity of the wrongdoer.

Held by Allen J that the plaintiffs had a case to make that the entries posted on the account by the username associated with the account meant that they were incompetent and inefficient and wrongfully and maliciously held the plaintiffs up to ridicule. Allen J held that the use of the second plaintiff’s name and logo infringed their trademark and that a strong prima facie case had been made out that the goodwill in the name and mark had been damaged by its use on the account and by its association with the comments posted using the username associated with the account. Allen J held that the case was made that the account derided and denigrated their business, which, coupled with malice, would come within s. 42 of the Defamation Act 2009.

Allen J held that he would follow EMI Records Ireland Ltd v Eircom Ltd [2005] 4 I.R. 148 and make the order expressly conditional on an undertaking that the information disclosed by the defendant would not be used for any purpose other than seeking redress in respect of the wrongs complained of. On the plaintiffs’ undertaking in those terms, Allen J held that there would be an order requiring the defendant, within seven days of service on the defendant of the perfected order, to provide to the plaintiffs, by e-mail to the plaintiffs’ solicitors, any details which it holds relating to the identity of the person or persons who created or control the account which was created in or about December, 2019 and which has most recently borne the name “Fartway Deliveries Ireland” and the Twitter handle “@fartwayIRE” including but not limited to the name or names, e-mail address or addresses, telephone number(s) and all IP addresses associated with all log-ins and log-outs relating to the account. Allen J gave liberty to either party to apply. Allen J held that the balance of the motion would be struck out and that there would be no order as to costs.

Order granted.

JUDGMENT of Mr. Justice Allen delivered on the 5th day of June, 2020

Introduction

1 This is an application on behalf of the plaintiffs for what has come to be known as a Norwich Pharmacal order directing the defendant to disclose to the plaintiffs such information as it holds relating to the identity of the person or persons who created and/or control an account on the eponymous social media platform operated by the defendant.

2 The plaintiffs claim to have been wronged in a number of respects by entries posted on the identified Twitter account. The premise of the action is that the defendant is responsible for the wrongs complained of. The premise of the application, to adopt the formulation of Lord Reid in Norwich Pharmacal v. Customs & Excise [1974] A.C. 133, is that even if the defendant is not legally responsible for the wrongdoing - or perhaps whether or not the defendant is a concurrent wrongdoer - it has nevertheless got so mixed up in the wrongdoing of the operator of the account as to have facilitated the wrongdoing that it has come under a duty to assist the plaintiff by disclosing the identity of the wrongdoer.

The evidence

3 The plaintiffs are companies incorporated in the State who, together with associated companies identified as the Parcel Connect Group, offer a range of what are described as parcel logistic services including a courier distribution service under the business name Fastway Couriers, a network of pick-up and drop-off points at convenience stores, a service that allows the plaintiffs’ customers to receive goods from UK retailers who do not deliver to Ireland, and delivery services linked to online sales by a number of retailers.

4 The Fastway Service operated by the first plaintiff is part of a global network of couriers operated under franchise from a New Zealand company. The franchise to carry on the Fastway business in Ireland is owned by the second plaintiff.

5 The defendant is a company incorporated in the State. It is said to be a subsidiary of Twitter Inc. and to be involved in the operation of the Twitter social media platform. The evidence is that the defendant is identified on the Twitter website as the service provider and data controller for users of the service within the European Union and the European Economic Area.

6 In July, 2013 the second plaintiff created a Twitter account in the name of Fastway Couriers IRE with a user name or Twitter handle @fastwayireland, but never used it.

7 In December, 2019 the plaintiffs became aware of a Twitter account in the name of Fastway Couriers Ireland with a Twitter handle @fastwayIRE. Besides the first plaintiff's trade name, the operator of the account was using the Fastway logo, which is a registered trademark.

8 The plaintiffs initially corresponded with the defendant through a portal on the defendant's website and later by e-mail asking that the account be removed on the ground that it was pretending to represent the plaintiffs’ business and brand. In support of this application the plaintiffs have exhibited copies of screenshots of the account taken on various dates. Whatever the initial impression of a visitor to the site may have been – and there were a number of entries posted by the plaintiffs’ customers and by customers of the retailers for whom the plaintiffs provide services - it seems to me that no one who read the entries posted by @fastwayIRE could sensibly have believed that the account was operated by the plaintiffs. For example, the postings in response to apparently genuine enquiries as to when parcel deliveries might be expected suggested that parcels had been flung over the rainbow and into fields, left in caves for a few weeks, and the contents eaten by drivers. Apart from such silliness, many of the entries were crass and vulgar. It is not necessary to set out the detail.

9 To the right...