Koji Takahashi Doshisha University Law School (Kyoto, Japan) Jurisdiction and Choice-of-Law Questions Arising in the Process of Unmasking Anonymous Online Authors Koji Takahashi Doshisha University Law School (Kyoto, Japan)

Internet access provider Anonymous or pseudonymous Host Internet access provider Anonymous or pseudonymous author ①　Posting of defamatory contents Server Website ④ Injunction or damages ② Disclosure of IP address and time stamps ③ Disclosure of the subscriber’s name Injured person

Stakeholders Injured person Author Internet service providers (ISPs) Access to justice. Author Maintaining anonymity. Internet service providers (ISPs) Not in maintaining the author’s anonymity. Avoiding liability towards the author for breach of duties of confidentiality. Exempted if obey court orders.

Japan: Legal base of disclosure order Statutory right against ISPs. Disclosure may be demanded if: (i) the alleged infringement has clearly taken place; and (ii) there is a justifiable reason for obtaining the disclosure, e.g. the information sought is necessary to claim damages. Substantive right: may be asserted in and outside courts.

Japan: Choice of law May be asserted only where Japanese law is applicable under the Japanese choice-of-law rules. Characterised as tort. Somewhat awkward since the claim is not for pursuing ISPs’ liability for tort. Better to view as an overriding mandatory rule of the forum?

Japan: Jurisdiction Disclosure order against Twitter Inc., a California company (Tokyo District Court, 4 July 2013) The Japanese version of “doing business” jurisdiction: Available if the suit relates to the business conducted in Japan by the defendant. Covers business activities conducted in Japan by means of internet from outside Japan. Also relied upon in suits against other foreign ISPs, e.g. Facebook. Available irrespective of the legal nature of the claim.

France: Legal bases of disclosure order Trust in Digital Economy Act, Article 6 II (1) [The internet service providers] hold and retain the information enabling the identification of any person who has contributed to the creation of the content of services of which they are providers. (3) The judicial authority may require [the internet service providers] to disclose the information mentioned in the first paragraph. Code of Civil Procedure, Article 145 If there is a legitimate reason to preserve or establish, before any legal process, the evidence of the facts upon which the resolution of the dispute depends, ... preparatory inquiries may be ordered at the request of any interested party ....

France: UEJF v. Twitter Inc France: UEJF v. Twitter Inc. (Tribunal de grande instance de Paris, 24 January 2013) Twitter Inc., a California company, did not dispute jurisdiction. Twitter contested that it was subject to the obligation to retain information under the Trust in Digital Economy Act. Twitter disputed that the provisions of the Act were overriding mandatory rules. The court stated it was not apparent that Art. 6 II of the Act was applicable in the present case. The court relied on Art. 145 of the Code of Civil Procedure to order disclosure, observing it to be applicable in international cases.

France: commentaries on the case Regret that the court did not clarify the circumstances where Article 6 II of the Trust in Digital Economy Act is applicable to foreign ISPs. The application of Article 145 of the Code of Civil Procedure would have been better justified on the basis that the French courts had jurisdiction. France was the place of injury, since the offending tweets, written in French, were received in France.

US: Legal base of disclosure order Anonymous author may be sued in the name of “John Doe.” A discovery order, called “Doe subpoena,” issued to ISPs. A procedural order, raising no choice-of-law question. Debate focused on jurisdiction over Doe rather than ISPs. No uniformity in detailed rules within the US.

In re John DOE a/k/a “Trooper” (Texas Supreme Court, 29 August 2014) A petition requesting Google disclosure. Rule 202 of Texas Rules of Civil Procedure: “a proper court” may authorize deposition to investigate potential claim. Receiving notice, the blogger asserted his contact with Texas was tenuous. Held “a proper court” must have personal jurisdiction over the potential defendant. While recognising the burden on the plaintiff could be heavy, refused to “interpret Rule 202 to make Texas the world's inspector general.”

Malcolm v. Doe 1 et al. (California Court of Appeal, 29 March 2013) Discovery against WordPress.com, a California company. Upheld personal jurisdiction over Does because they had “purposefully avail[ed] themselves of the services of a company located in the State of California.” Notwithstanding that the plaintiffs were English local politicians and initiated the discovery to learn if their political rival was the author. cf. Melvin v. Doe (Virginia Cir. Ct., 24 June 1999) Quashed a subpoena against America On Line, a Virginia company. The “minimum contacts” requirements were not satisfied since the effects of the defamatory posting were felt more in Pennsylvania.

England: Legal base of disclosure order Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] AC 133 “If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.” A procedural order, raising no choice-of-law question. Questions of jurisdiction over ISPs featured in a few cases.

England: Bacon v Automattic Inc and others [2012] 1 W.L.R. 753 Norwich Pharmacal order was sought against the defendants, U.S. companies. The claimant applied for permission to serve the claim form out of the jurisdiction on the ground (as provided by CPR Practice Direction 6B 3.1(2)) that a claim is made for an injunction ordering the defendants to do an act within the jurisdiction - namely disclose the information sought.

Recap and conclusion A disclosure order based on a substantive right: Japan, French Trust in Digital Economy Act Both choice-of-law and jurisdictional questions arise: whether the rules for tort are available. A procedural disclosure order: in the US, England and France. Subject to the lex fori. No choice-of-law questions arise. Jurisdiction over a suit against the anonymous author: US over a suit against the ISPs: England (and France?)