The High Court has ordered Twitter to provide information to Fastway Couriers aimed at identifying the operator of a parody account, allegedly abusive and damaging to the courier company, for the purpose of suing them.
The account first appeared on Twitter in late 2019, was most recently renamed Fartway Deliveries Ireland and was deactivated by the unidentified controller(s) after Fastway initiated proceedings in late April.
The account featured abusive tweets suggesting Fastway drivers were “incompetent, with no regard for customers and their packages”, drivers had Covid-19, and parts of the country were “holes” and “non-essential areas” to which Fastway would not deliver.
Twitter’s lawyer David Holland SC had said it was “mute” on the Fastway application and takes seriously both freedom of expression and the principles of law but would comply if the court made the order.
In his judgment on Friday, Mr Justice Senan Allen ordered Twitter to disclose, within seven days, such information as it has relating to the identity of those who created and/or controlled the account on condition that information is not used for any purpose other than to redress the wrongs complained of in this case.
The judge said, whatever the initial impression of the parody site might have been, he considered that no one who read the entries posted by @fastwayIRE "could sensibly have believed" the account was operated by the plaintiff companies - Parcel Connect Ltd, trading as Fastway Couriers and A & G Couriers Ltd.
For example, the postings in response to apparently genuine enquiries about when parcel deliveries might be expected suggested parcels had been “flung over the rainbow” and into fields, left in caves for a few weeks, and the contents eaten by drivers, he said. “Apart from such silliness, many of the entries were crass and vulgar.”
The judge noted, after Fastway’s solicitors wrote to Twitter in early April 2020, the account was suspended for a few days but then restored and Twitter had declined to identify the parody account holder to Fastway.
Twitter also notified Fastway on April 11th 2020 it had investigated the complaint about the account and determined the material did not violate Twitter’s terms of service or rules.
The name of the parody account was initially Fastway Couriers Ireland and was changed to Fastway Couriers Ireland? on April 14th, to Fastwah? Couriers Ireland on April 20th and to Fartway Couriers Ireland on April 28th.
Fastway, represented by Donogh Hardiman BL, initiated its case on April 29th.
Mr Justice Allen said he was “entirely unconvinced” about Fastway’s argument the parody account owner has been masquerading as, and using the voice of, Fastway.
While someone stumbling on the account might, until its name changed on April 20th, and possibly April 28th, have had the impression it was associated with Fastway, any such impression would have been “immediately dispelled by a cursory reading” of the entries.
He was not persuaded Fastway had made out, to the requisite standard, a case the posting meant Fastway and its staff use foul and abusive language but was persuaded Fastway had sufficiently made out a case the postings mean it and its staff are incompetent and inefficient and wrongly and maliciously hold them up to ridicule.
There may ultimately be an issue the words amounted to no more than “vulgar abuse” but, for this application, the case was sufficiently made out, he said.
Fastway’s complaint that the use of its name and logo infringes its registered trademark was also “sufficiently justified”, he said.
He was satisfied a “strong prima facie case” had been made out the goodwill in its name and mark had been damaged by its use on the parody account and by association with the comments posted using the username associated with the account.
On claims the account wrongly interfered with Fastway’s business and contractual relations, he found it difficult to believe any misapprehension the account was operated by Fastway could have survived the answers given by the parody account operator to queries from the public.