Behind the mask
A local authority recently sought disclosure from Twitter of the true identity of 'tweets' claimed to be defamatory to its employees. Tom Collins and Graeme Creer examine the background to the case.
In recent months the use by celebrities of super injunctions and attempts by social networkers to thwart those injunctions has hit the headlines. That has led to celebrities looking for court orders to unmask those who have sought to undermine the injunctions. However, the use of disclosure orders has also come to light in the field of local government.
South Tyneside Council has been seeking to identify an anonymous blogger/Twitter user who is alleged to have posted comments alleged to be defamatory of its employees. It was widely reported that Ryan Giggs received advice to seek a disclosure order against Twitter (based in the US) to unmask the identity of those who undermined his order. However, South Tyneside Council has itself been successful in obtaining such a disclosure order against Twitter in the Californian Courts. Whilst not arising out of an injunction order the Council sought disclosure details of the true identity of those posting tweets alleged to be defamatory of its employees.
The order obtained was subject to the law of the state of California. In the UK such an order would likely be made following the principles set down in the Norwich Pharmacal case. That is on the basis that Twitter holds the details of alleged wrongdoers which are needed to enable legal proceedings to be brought against them. It does not appear that an issue was raised as to whether Twitter itself was liable for the postings. Whilst Google has established that it should escape liability as it acts only as a ‘facilitator’ by processing results of searches; it remains to be seen if Twitter would escape liability. In reality, it probably would not escape liability if it was on notice to take down the postings, but that is an argument for another day.
But what of the actions of South Tyneside which have caused much debate? It is currently settled law, following the case of Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, that local authorities are not able to bring proceedings for defamation. This is based on the idea that local authorities are democratically elected bodies which should be open to public criticism; so an attempt to stifle that criticism would not be in the public interest and would inhibit freedom of speech. The decision itself was really about local authorities’ statutory powers, however, the court finding that local authorities’ statutory powers did not include a power to bring proceedings such as these.
Of course South Tyneside was not seeking to bring a defamation action in its own name. Instead it sought disclosure to protect its own employees. It is also settled law that local authority officers who believe that they have been defamed can seek to bring an action themselves (McLaughlin v London Borough of Lambeth [2010] EWHC 2726 (QB)). The question is to what extent can a local authority provide an indemnity to assist its employees in bringing such an action?
The case of R (on the application of Comninos) v Bedford Borough Council [2003] EWHC 121 (Admin) provides that if there is clear justification in the public interest a local authority can provide financial support for such proceedings. That case concerned a challenge by the external auditor to an indemnity given by the council to its returning officer to enable him to bring defamation proceedings following critical comments in a local newspaper. The external auditor acknowledged that a local authority could take such action pursuant to its ‘incidental powers’ (Local Government Act 1972 Section 111) but argued those powers could only be used for ‘defensive’ and not ‘offensive’ purposes. Whilst the claim failed in any event, as it was brought out of time, the Court stated there was no such distinction between ‘defensive’ and ‘offensive’ purposes, and that in these circumstances statutory power could be found within Section 111. There is no caselaw for or against the proposition that an indemnity may be given to members, as opposed to officers, under this principle, although any decision to do so would have to be justified in terms of the benefit for the authority itself, in the discharge of its other functions, and not in terms of the impact on the individual member.
There are specific powers enabling local authorities to indemnify their members and officers against proceedings brought against them, in the Local Authorities (Indemnities for Members and Officers) Order 2004. Regulation 6(3) provides, however, that an indemnity cannot be given to officers or members under the Order who seek to bring a defamation claim (although it can be given for the defence of such a claim). This is an enabling power, though, and it is generally understood to leave local authorities’ other powers, including the general powers like Section 111, undisturbed.
So far as South Tyneside is concerned, it has been reported that one of those whose account details have been disclosed is presently being advised in relation to action, most likely a judicial review, against South Tyneside to challenge the use of public funds in this way. If this happens, the case may well explore the tensions between the Derbyshire and Comninos cases, and the implications of the 2004 Order. There may also be questions about whether simply seeking disclosure as a preliminary is different from bringing full proceedings. It remains to be seen if South Tyneside will itself take any further action in the putative proceedings or leave its employees to decide their own course of action.
Whilst the outcome of that legal action is awaited, all of this is likely to be superseded when the Localism Bill becomes law, and local authorities are given a general power of competence so that they can do “anything that individuals generally may do”.
Tom Collins is an Associate and Graeme Creer is a partner at Weightmans. They can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it. respectively.
