How can the courts manage the Facebook phenomenon?

The Plaintiff”s solicitor maintained that Facebook should amend their registration system to prevent access by children, a technically straightforward step. The genesis of this averment, notes McCloskey J, was not specified. It was part of

the vast proliferation of materials exhibited to the affidavits filed on behalf of the Plaintiffs, which appear to be the product of energetic internet research on the part of their legal team. These include, in particular, multiple news items and other commentaries emanating from all manner of sources. They appear to be infused with the personal opinion of commentators and contributors of all kinds. Their nature, weight and origins are such that the extent to which the Court can treat them as reliable and weighty is vexed and unclear.

For its part, Facebook averred that it could not proactively monitor the site to prevent an individual from posting content on the website.

It would be unfeasible for Facebook to review over 1 billion profiles and millions of uploaded posts to determine if a particular individual has posted content on line. …There is no technical programme or mechanism that exists to prevent an individual from lying about his or her identity and then posting content under a false name. All Facebook can do is act expeditiously every time it receives a report about unlawful or abusive content that violates the terms of the [Statement of Rights and Responsibilities].

The causes of action invoked by the Plaintiff are described by the judge as “diffuse, and imaginative” and they run to an astonishing thirty claims, including Articles 2, 3 and 8 ECHR; Section 6 of HRA, The Data Protection Act 1988,The UN Convention on the Rights of the Child, the EU Charter of Fundamental Rights and a recent libel decision of the English Court of Appeal in Tamiz  v  Google [2013] EWCA Civ 68 which we’ve posted on here.

In addition, the substantive relief claimed by the Plaintiff was also  “diffuse and imaginative”. It consisted of a variety of permanent injunctions, declarations, damages and an order for delivery up of phones, computers, lap tops and other like equipment.

As to the injunctions, the judge declined to grant them since a court will not order any defendant, by the medium of an injunction, to “take all necessary steps” to do something or to “undertake steps” to like effect. Such an injunction is incapable of effective supervision and enforcement by the court. What evidence there was before the court, in an application which was generally “evidentially impoverished”, established that the Plaintiff had the ability to access Facebook by a variety of mechanisms over which the Defendant had no control whatsoever and which would lie outwith the scope and effect of any feasible, reasonable and proportionate interim injunctive order.

The diffuse nature of the Plaintiff’s case and the profusion of causes of action upon which she purportedly relies, to which I have referred above, combine to create a blur which is not conducive to the construction of a serious issue to be tried.

…I find all of the multiple causes of action invoked enshrouded in a swirling mist of obscurity and uncertainty

So, the judge’s conclusion in the present hearing was that the Plaintiff’s application for interim injunctive measures against Facebook was not made out, and he therefore refused the application. However, he had a warning for Facebook: they were not let off the hook altogether. The essence of their defence, he noted,

consists of an admission by Facebook that it has created something of a monster which, it alleges, it cannot control. Whether upon the full trial of the present case or in some other appropriate case, it is inevitable that this plea of impotence will be subjected to intense judicial scrutiny, not least because the proceedings involve a child. This purely interim judgment is not to be construed as an endorsement for vindication of Facebook’s defence or an acceptance of its plea of impotence.

The misuse of social network sites are increasingly coming to the attention of the courts: see McArtney, AG’s reference (No.8 of 2009),  AB Limited and Others – v – Facebook Ireland Limited and Another [2013] NIQB, and of course the potential for a service provider like Google to be liable for defamation after receipt of a complaint: Tamiz  v  Google. But whether the “monster” can be “brought under control” by a UK or even an international court is another matter altogether.
Sign up to free human rights update s by email, Facebook, Twitter or RSS

Related posts:

• Can Google be sued for the content of blogs on its platform?
• Judge strikes down Facebook page “Keeping our kids safe from predators”
• Facebook faux pas and discliplinary proceedings: when do human rights come in?
• Are Facebook and Twitter making criminals of us all?
• Twelve weeks in prison for sick jokes on Facebook? Really?
• Twitter users “free to speak not what they ought to say, but what they feel”
• Free speech and prosecution in the age of Twitter