On digital assets, Discord, and discovery: how businesses can seek recourse for online harms.

The Legend of Zelda is one of Nintendo's most successful franchises. An upcoming installment is the highly anticipated¹ Legend of Zelda: Tears of the Kingdom.

In February, an art book containing more than 200 pages of character and location designs was leaked online on Discord, an instant messaging social platform.²

Nintendo was, understandably, not pleased. It issued a takedown notice to Discord, which immediately complied.³

So that was probably the end of the matter for Discord, right?

Nope.

Nintendo has applied to Court for Discord to disclose the leaker's identity.

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Now some of you might be thinking:

"Hold on! Why is Discord being sued? Surely it's already done the right thing by taking down the content? It can't control every single one of its 150 million⁴ users, right?"

That's fairly logical. But let's dig deeper.

Nintendo is not suing Discord for damages. Nintendo is seeking an order for Discord to disclose an alleged wrongdoer's identity.

This is not just a technical distinction.

If Nintendo had taken out the equivalent application in Singapore (i.e. a pre-action discovery application), it would essentially be telling the Court:

"Look, Discord has been mixed up in some wrongdoing. It's not Discord's fault, but Discord has information that we need to seek recourse. Unless Discord cooperates, we won't know who to sue. So please order Discord to provide this information."

But hold on. Even if Discord is not being sued, no company enjoys responding to a court application, which expends management time, internal resources, and legal costs. So couldn't Nintendo have just asked Discord, "Hey guys, this user is the leaker, hand over his details please!"

But here's the thing. If Discord gets a request like that, they can't just say "Ok guys! Here you go! Have a nice day!" Because:

(a) it might be a breach of contract - their terms of service may well provide that they will not disclose users' personal information to 3rd parties unless ordered by a Court to do so; and/or

(b) it might be breach the applicable data privacy rules in that jurisdiction.

So it may well be that someone at Nintendo had made an off-the-record call to someone at Discord, saying, "Hey guys, we need to know who the perp is. Now, I know you can't just hand over his details just like that, so we're going to have to apply to court, ok? No hard feelings bruh."⁵

And it may well be that Discord isn't really interested in vigorously resisting the court application. Because what incentive do they have to fight this, really?