Postscript: Twitter abuse and contract law
What can a collision between two super-yachts on the Clyde in the dying years of Queen Victoria’s reign teach us about the current hot topic of abuse and threats levelled on Twitter? Perhaps more than one might imagine at first sight.
According to the New York Times1 a massive crowd had gathered on July 5 1894 to watch six yachts compete in the Mudhook Regatta, between Gourock and Rothesay on the upper Clyde estuary. With spectator boats crowding the course, the massive, overpowered yachts — carrying over 10,000 square feet of sails and travelling at speeds in excess of 12 knots — had little margin for error. The 135ft Satanita, while jockeying for position on the start-line, hit the 120ft Valkyrie amidships, sinking her in minutes. Although all aboard Valkyrie were rescued, one crew-member was seriously injured and later died.
About four years later the resulting law suit reached the House of Lords, who upheld the Court of Appeal’s finding that there was a contract between all the yacht-owners who had participated, under which Mr Clarke, the owner of Satanita, was obliged to pay Lord Dunraven, the owner of Valkryie, damages for the sinking.
Rigby LJ, in the Court of Appeal, said:
[A]ll that is necessary to constitute a contract between the yacht owners is to bring home to each of them the knowledge that the race is to be run under the Yacht Racing Association rules, and that they, the one and the other, deliberately enter for the race upon those terms… The contract did not arise with any one, other than the managing committee, at the moment that the yacht owner signed the document, which it was necessary to sign in order to be a competitor. But when the owner of the Satanita on the one hand, and the owner of the Valkyrie on the other, actually came forward and became competitors upon those terms, I think it would be idle to say there was not then, and thereby, a contract between them, provided always that there is something in the rule which points to a bargain between the owners of yachts.
This view was expressly endorsed by the House of Lords, the highest legal authority in the country, and remains good law over a century later.
The idea of a contract entered into with a centralised, supervisory authority which matures into an enforceable bargain with everyone else who has agreed to play on those terms is directly relevant to Twitter and its terms of use.
My previous article, Twitter Abuse: Law and Myth, was critical of Twitter’s lack of action on this matter to enforce their own TOU. Those criticisms remain, but this article considers alternative possibilities, specifically the option of civil action under contract by those affected by abusive users.
Contractual action is not a panacea; problems of cost of process, identification of defendants and jurisdictional issues remain. However, the lower standard of proof in civil actions (balance of convenience as opposed to “beyond reasonable doubt”) and the possibility of recovering significant damages where actual harm has been demonstrated2 suggest the civil action options ought not to be ruled out.
Can Twitter’s terms of service be used in the same way as the Yachting Association rules were used in the Satanita to give a cause of action as between individual users of the Twitter service? Given those rules are governed by the laws of the State of California, it’s not possible for this English-qualified lawyer to give a definitive answer. It would depend on issues of privity and construction under local law. What can be said, though, is that there appears to be nothing within the Twitter TOU that definitely rules out such an approach; that all limitations of liability in the TOU apply only in favour of “the Twitter Entities” as defined, and do not protect any users; and that at the very least The Satanita3 provides persuasive authority for such an approach.
Previous efforts to encourage Twitter to be more robust in its efforts to enforce the anti-abuse and harassment provisions of its TOU have been met with cries of “Freedom of Speech!” Perhaps the time has come to set up freedom of contract as an additional weapon in the anti-abuse campaigner’s armoury.
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The Yacht Valkyrie Sunk: Run Down in the Clyde by the Satanita ↩
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For example, the direct cost of additional safety precautions needed following bomb threats, such as overnight hotel accommodation and disruption to business caused by police having to check home or office premises following such a threat, to say nothing of provable injury caused by fear and distress. ↩
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[1897] AC 59 ↩