X v Facebook Ireland Ltd  NIQB 96 (30 November 2012) - read judgment
This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the “wild west” of the internet and the question of social media regulation.
This short judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,
The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.
Background to the case
The plaintiff (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith.
Apart from its central question, this case encompasses a number of interesting issues in the spotlight at the moment.
Anonymity v open justice
The first is the right to anonymity in certain cases against the principle of open justice. XY had been anonymised on the basis that his right to access to justice would be thwarted if anonymisation had not been granted, ditto his freedom from inhuman or degrading treatment and right to respect for his private and family life. The judge concluded that the measure of granting the plaintiff anonymity would constitute a relatively modest dilution of the principle of open justice.
Another unusual aspect of the case is the participation of the defendant itself. Despite the fact that Facebook is not registered in the jurisdiction of Northern Ireland this interlocutory action was able to go ahead because Facebook complied via their solicitors with an order for discovery in favour of the plaintiff. And the court was able to weigh the anonymity considerations in another “somewhat unusual context” in which Facebook, by common consent, had, in response to this litigation, voluntarily removed from the site in question the plaintiff’s name, his photograph and all comments pertaining to the photograph. Another singular feature of this litigation is that neither the defendant nor any intervening party asserted before the court the Convention right to freedom of expression. Notwithstanding this latter consideration, McCloskey J was “mindful of the Court’s duty” as a public authority under section 6(1) of the Human Rights Act and took Article 10 combined with Section 12 HRA into account himself.
The Facebook page in question, titled “Keeping Our Kids Safe from Predators”, was an open access page which means that its contents are vulnerable to rapid and unpredictable change by visitors to the site. As the judge explains,
This typically takes the form of ever increasing expansion, with the posting of further material by users/contributors. Variation can also occur through the removal of material already on the site or outright closure.
XY, who had been convicted of a number of charges of indecent assault involving children, was classified colloquially as a “sex offender”. Before he initiated these proceedings and Facebook removed them, his name, photograph and growing list of comments were there for all to see. This content was undeniably menacing to the plaintiff. He described a threat that he would be “burned out” of his rented accommodation. His affidavit concluded:
I am in fear for my safety and in a state of constant anxiety as I believe if this material continues to be published it will only be a matter of time before the threats materialise into an attack on me or my home. The Defendants are publishing comments intended to vilify me, some of which are directly threatening. By publishing this material about me, the Defendants are providing a vehicle for others who may have criminal intent to gain information about where I live and to stir up hatred against me.
McCloskey J resolved the “balance of convenience test” in favour of XY and granted the injunction on the defendant to remove the entire Facebook page, on the basis that such relief at this stage
will entail at most minimal inconvenience for Facebook and no evident financial loss. In contrast, it will provide the Plaintiff with a measure of protection against further prima facie unlawful conduct, the consequences whereof could, realistically, be highly detrimental to him.
…While his offences were repulsive, he has been punished appropriately. Against this broader canvas and at this stage of the evolution of the wider story, I conclude that the pendulum of the rule of law swings in the Plaintiff’s favour to the extent that he qualifies for the temporary relief sought at this stage of the proceedings.
The Court’s reasoning
In a society governed by the rule of law, everybody, including convicted criminals, are entitled to equal protection before the law. In XY’s case he had the right to expect
(a) The legislative protection afforded by the Protection From Harassment (NI) Order 1997, which prevents any person from pursuing a course of conduct amounting to the harassment of another and which the perpetrator knows or ought to know amounts to such harassment (per Article 3).
(b) The statutory protection provided by the Human Rights Act 1998, section 6 whereof requires the Court, as a public authority, to avoid acting incompatibly with the Plaintiff’s rights under Articles 3 and 8 ECHR. These provisions, respectively, guarantee to every member of society freedom from inhuman or degrading treatment and protect every person’s right to respect for private and family life.
In such a case of this, where the individual’s safety was being plausibly threatened, the threshold for awarding interim injunctions under the American Cyanamid principles had to be lowered, following Cream Holdings v Benerjee.:
Thus probability of success at the eventual trial is not an inflexible standard in cases of the present genre.
The judge therefore concluded that the contents of the offending Facebook page constituted, prima facie, unlawful harassment of the plaintiff; that the perpetuation of this webpage (even in its less extreme form) created a real risk of infringing the plaintiff’s rights to freedom from inhuman and degrading treatment under Article 3 ECHR, together with his right to respect for private and family life under Article 8 ECHR.
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