A man who was allegedly being harassed online has been granted permission to serve proceedings on an unknown defendant via Instagram, a photo-sharing, social-media platform. He had obtained an injunction against the defendant to prevent harassment and the disclosure of private information, but without knowing the identity or address of the defendant and given the nature of the threats, the court considered alternative service.
The Claimant, a student known only as DDF due to the anonymising of proceedings, received alleged threats from an unknown user or users to make false complaints that he committed serious sex offences, and to disclose purported private information in the form of intimate photographs.
At an ex parte hearing, the Claimant sought a banning order before Mr Justice Nichols. In deciding whether or not to grant the temporary injunction, Nichols J concluded that injunctions were likely to be obtained at trial both under the Protection from Harassment Act 1997 and against the additional release of private information. Though the defendant was not present and had not been notified, the circumstances were such that it was just, convenient and appropriate that the banning order be granted. Accordingly, Nichols J issued the order.
The messages included allegations of criminal conduct. The judge reiterated to those present in court that the injunction should not prevent the defendant from attending a police station in person to make a complaint about DDF, but also warned that the act of making of false and malicious allegations of criminal conduct can amount to a tort, regardless of whether it be in person, online or otherwise.
It is believed to be the first time in a common law country that a court has permitted proceedings to be served via Instagram. The courts have previously allowed service via social media including Facebook and Twitter, so this is viewed as a likely extension of the law. While many are familiar with Instagram as a suitable medium for reproducing sunsets and selfies, it might require some trial and error to effectively photograph court documents so that they are legible.
The identity and contact information of the defendant were unknown, aside from the Instagram account in question, which is why the Claimant sought alternative service. Discovering the identity of anonymous, online users who subsequently find themselves in civil and criminal legal proceedings can be very difficult. In the present case, Instagram is not liable for the misconduct of its users. The users alone are liable, and online victims only have recourse against the users and the means of service permitted by the court. In contrast, while certain website operators have limited liability for the misconduct of its users under EU legislation such as the E-Commerce Directive, recent ECtHR case law, notably Delfi v Estonia, has cast doubt on the size of the safety net afforded them. While each new case like DDF v YYZ helps sharpen the appropriate approaches to address anonymous abuse online, the overall snapshot of this area of the law is still a little too blurry.