How can the courts manage the Facebook phenomenon?
24 April 2013
HL (A Minor) v Facebook Incorporated, The Northern Health and Social Care Trust, The Department of Justice for Northern Ireland and others  NIQB 25 (1 March 2013) – read judgment
In this somewhat chaotic action, the Plaintiff sued ten defendants, in anonymised form by her father and next friend.
The Writ stated that the Plaintiff, aged 12, had been engaged in posting and uploading sexually suggestive and inappropriate photographic images of herself onto Facebook, and that she had been doing so vis-à-vis several different accounts with differing profile names. She had been involved with the social services from the age of 11. From July 2012 to January 2013 she was the subject of a Secure Accommodation Order. She currently resides in a specialised unit, is a grade below secure accommodation.
This was clearly a bid by the father to bring his wayward daughter under control by restricting her access to the internet.
The gravamen of the Plaintiff”s (in other words, her father’s) case against Facebook was that it had failed to prevent access by her to this social network site. It was alleged that Facebook, while aware of the extreme risks to children such as this Plaintiff, had failed to require age and identity verification or express parental consent as a precondition to the registration of an account by children. While it was acknowledged that there is a monitoring system, this was condemned as inadequate. The relief sought by the Plaintiff in this interim application was against Facebook only. She sought an interim injunction restraining Facebook from publishing, distributing, broadcasting or transmitting any information relating to the Plaintiff. She also sought a mandatory injunction requiring Facebook to “take all necessary steps” to prevent the Plaintiff from accessing Facebook.com and another injunction requiring Facebook “to take all necessary steps” to prevent the Plaintiff from posting, publishing, distributing, broadcasting or transmitting any information relating to her on Facebook.com. Finally, she requested an interim injunction requiring Facebook “to undertake steps” to ensure that the age and identity of all members or users of Facebook.com within the jurisdiction, including the Plaintiff, were verified in advance of permitting access to the site.
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  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  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.
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