Suing Facebook is no easy matter

9 November 2015 by Rosalind English

Richardson v Facebook [2015] EWHC 3154 (2 November 2015) – read judgment

An action in defamation and under the right to privacy against Facebook has been dismissed in the High Court. The Facebook entity named as defendant did not “control” the publication so as to allow liability; and even if it did, no claim under the Human Rights Act could lie against FB as it could not be described as any sort of a public authority for the purposes of Section 6 of the Act.

The claimant, acting as a litigant in person, sought damages in respect of the publication in 2013 and 2014 of a Facebook profile and a posting on the Google Blogger service. The Profile and the Blogpost each purported to have been created by the claimant, but she complained that each was a fake, created by an impostor. She claimed that each was defamatory of her, and infringed her right to respect for her private life under Article 8 of the European Convention on Human Rights (ECHR).

Her claims were dismissed by Master Kay QC because he found that she had sued the wrong defendant in each action. This was her appeal against his ruling. Before her appeals were heard she wished certain issues to be referred to the Court of Justice of the European Union (“CJEU”) for a preliminary opinion. In June and July 2015 she issued the appropriate applications.

There were a number of technical and procedural issues before the court, but the one that concerns us here was the substance of her claim in libel, and the associated claim under Article 8 of the Convention.

The first problem was that the claimant had sued Facebook UK. FBUK’s consistent position was that it does not control user content on Facebook social media, which control rests with Facebook Inc (a Delaware corporation), and Facebook Ireland. Indeed the claim was initially addressed to “Facebook” which does not cover any of FB’s corporate identities. In this appeal, Warby J found that the court below had been right to dismiss the proposed claim:

Unless the claimant can identify some arguable ground of challenge to the Master’s conclusions on that score, she can have no real prospect of success on an appeal. It was not suggested, and nor do I consider, that this is a case in which there could be any other compelling reason to grant permission to appeal.

As for the substance of the claim, the claimant had failed to establish that the named defendant had been responsible for publication. Internet service providers are not liable as publishers at common law if their role in the dissemination of allegedly wrongful material is merely passive and instrumental, and is undertaken without knowledge of the relevant words: Bunt v Tilley [2007] 1 WLR 1243 [at 23].  An ISP which plays more than a merely passive role, and facilitates publication, may be strictly liable as a publisher at common law; that is, it may be liable even at a time when it is unaware of what it is that it is participating in publishing: Godfrey v Demon Internet Ltd [2001] QB 201. That, however, was not the case advanced against FBUK in this action, which based its claim upon the continued availability of the material online after complaints and requests for removal made by the claimant. Responsibility was said to attach because of an unreasonable failure to remove and/or unreasonable delay in removing the material.

The “golf club notice board” case of Byrne v Dean remains good authority for this situation, even though it was decided long before the advent of the internet ( [1937] 1 KB 818. ). The underlying rationale of this old decision was that the defendants were responsible for publication, and that they were therefore

in control of the notice board and had the power to act so as to remove a posting by a third party which was unauthorised and wrongful; by failing to exercise that power in the knowledge of the posting they became liable for its continued publication. This rationale is plainly capable of applying to some of those involved in the provision of internet services and social media platforms.

However, in this case the claimant had not discharged the onus of pleading and proving that the defendant was responsible for the publication complained of.

That must involve a clear and coherent statement of the factual basis on which the defendant’s legal responsibility is alleged to arise, sufficient to enable the defendant (and, I would add, the court) to understand the basis on which the defendant is said to be responsible. This draft statement of case fails to assert any such factual case.

The claimant had amended her allegation to the effect that FBUK had been notified of her complaint, which went beyond what is alleged earlier in the pleading, where notification was said to have been given to “the Facebook Service” and “Facebook”. But Warby J concluded that even if this claim were true it could not, in the absence of an allegation that FBUK had the power or ability to control content, form a proper basis for the attribution of responsibility for publication on the basis of Byrne v Deane principles. It was also clear on the evidence that the claimant had no Byrne v Deane case with any prospect of success.

There is absolutely no reason for this issue to be resolved at what would be an inordinately expensive trial. Far from it. This has already been very expensive litigation. It is hard to see why the claimant chose to start a claim against FBUK. Other than seeking to protect her costs position it is hard to see what good reason she has had for continuing with such a claim. She has at all times been aware of other identified corporate entities which evidently accept responsibility for user content on the Facebook Service (though they may have other answers to a claim, if one were made).

As for the Article 8 claim, the judge agreed with Master Kay that  “since [FBUK] was not the publisher/tortfeasor it cannot have any separate liability to the claimant pursuant to Article 8 ECHR.”

The Master must in my judgment be taken to have disposed of this claim on the basis that since the claimant has no tenable case that FBUK bore responsibility for publication the Article 8 claim is doomed.

The claimant’s alternative argument was also dismissed. She contended that FBUK should be held responsible for the publication of the Profile, on the basis that Facebook Inc and its subsidiaries are to be treated as a single economic unit along the lines of the CJEU’s decision in Google Spain SL v Agencia Española de Protección de Datos (AEPD) [2014] QB 1022. The argument was in Warby J’s view “entirely misconceived”. Google Spain was a decision on the scope and application of the Data Protection Directive, 95/46/EC, which might have a bearing on the approach that should be taken to a domestic claim for breach of data protection law. But that case had nothing to say about the domestic law of responsibility for publication in defamation. That was a matter determined by the common law and the Defamation Acts. Furthermore, Google Spain had no bearing on how English law should approach a contention that a given defendant was liable for breach of Article 8. That also turned on domestic law, and in particular the scope and application of the Human Rights Act 1998, “which has no interaction with the law of data protection”.

Even though the claimant’s argument under Article 8 had failed on common law defamation grounds, Warby J dealt with her submission that FBUK could be sued under the Human Rights Act as a “hybrid public authority”. This was an impossible line to take, he said. By s 6(1) of the 1998 Act it is unlawful for a “public authority” to act in a way which is incompatible with a Convention right, such as Article 8. Section 7(1) of the Act provides that a person who claims that a “public authority” has acted incompatibly with a Convention right may bring proceedings “against the authority”.

There is no exhaustive definition of the term “public authority”, but the terms “core” and “hybrid” public authority have been coined to identify two categories of authority. The first is a person or body which carries out only public functions. The term “hybrid public authority” is used to describe a person or body which fits the description in s 6(3)(b) of the 1998 Act, which provides that “In this section ‘public authority’ includes – … (b) any person certain of whose functions are functions of a public nature …” The proper interpretation and application of that inclusive definition have been considered on a number of occasions, in Parliament and in the courts.

It is of course correct to say, the judge continued, “that the mere fact that an organisation is a commercial enterprise does not prevent it qualifying as a public authority within the scope of s 6(3)(b). But by the criteria advocated by the claimant, almost any commercial enterprise providing valuable services to the public at large would qualify as a “public authority”.

There is no difficulty in rejecting these arguments as clearly absurd. Facebook does not act “in the public interest” in the relevant sense, nor can it conceivably be described as performing “functions of a public nature”.

Nor could the applications to the CJEU for a determination on this and other questions stand. First, the question of whether FBUK could be said to be a “hybrid public authority” turned on the interpretation of the Human Rights Act 1998 and not any provision of the ECHR. Secondly, the interpretation of the ECHR was not a matter for the CJEU, but for the domestic courts, subject to the jurisdiction of the European Court of Human Rights.
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