Two recent Northern Irish cases have provided useful guidance on the ability to claim compensation from social media companies following the publication of content by other users.
The two cases, J20 v Facebook Ireland Limited and CG v Facebook Ireland Limited and McCloskey, concerned Facebook's liability to pay damages to individuals who claimed that unlawful content was being published about them. In J20 (a High Court decision), the claimant (a man in his 50s with alleged Loyalist links) alleged that the posts complained of amounted to harassment and misuse of private information. Meanwhile, in CG (decided by the Northern Ireland Court of Appeal), the relevant causes of action on appeal were misuse of private information and breach of the Data Protection Act 1998 in respect of postings published in the context of CG's history as a convicted sex offender.
Both judgments contain interesting discussions of whether the information published gave rise to a reasonable expectation of privacy for the claimants. However, the focus here is on what the cases tell us about the general ability to seek compensation from Facebook and other social media websites for unlawful content. The relevant legislation is not specific to Northern Ireland and therefore the cases are likely to prove instructive on how the English courts may resolve such issues.
While individuals will always have a potential cause of action against the person(s) actually responsible for posting unlawful content, there may be reasons why this approach is impractical, such as problems identifying the poster, their shallow pockets or the fact that taking action directly against them runs the risk of exacerbating the situation further and inducing them to publish more damaging content. Whether or not practical to take action against the poster, claimants will often also consider bringing a claim against the social media platform or website on which the information is published. For obvious reasons, the law provides added protection to such third party intermediaries.
In both J20 and CG the relevant protection was provided by the Electronic Commerce (EC Directive) Regulations 2002 ("the ECR"), which are derived from EU Directive 2000/31/ED (the e-Commerce Directive). Under the e-Commerce Directive, Facebook is an "information society service" provider and, because its service "consists of the storage of information provided by a recipient of the service", it can rely on the defence in Regulation 19 of the ECR (as derived from Article 14 of the e-Commerce Directive). Under Regulation 19, Facebook would not be liable for damages providing it acts expeditiously to remove or disable access to any offending material once notified.
This provision is consistent with Article 15 of the e-Commerce Directive which stipulates that the likes of Facebook should not be subject to a general obligation to "monitor the information which they transmit". However, as the scrutiny of social media content inevitably increases, so does the focus on social media websites' specific responsibilities in relation to that content.
Much of the discussion in J20 and CG focused on whether Facebook had actual knowledge, or at least sufficient information to know, that the offending material breached the claimant's right to privacy. The following material points were noted in the judgments:
- There could be no liability on Facebook prior to it being put on actual notice of the matters that gave rise to the legal claim. Nonetheless, in J20, the judge stated that the likes of Facebook should be expected to know the relevant law in relation to matters such as defamation or misuse of private information, and could not simply turn a blind eye if the complaint failed to categorise the precise legal basis of the complaint.
- The Court of Appeal in CG agreed that the omission of the correct form of legal characterisation did not preclude a claimant from showing that Facebook was aware of the relevant facts, but it was necessary to identify "a substantive complaint in respect of which the relevant unlawful activity is apparent". By way of example, in early correspondence in the case, CG's solicitors did not express specific concern about the publication of the area in which he was allegedly living, despite this being an issue which was material to the privacy complaint. By contrast, a later letter did on multiple occasions refer to, and raise concerns about, the location where CGwas living. As such, following the later letter, Facebook was deemed to be on notice of the risk caused by the publication of information about CG's place of residence and should have acted "expeditiously".
- While the ECR envisages that Facebook should have a specific notice and takedown procedure, this does not mean that Facebook can escape liability under Regulation 19 if the user fails to use this procedure. The requisite knowledge can be acquired by any means.
The upshot of these cases is that, whilst there is plainly some flexibility in the way that potential claimants can notify Facebook of unlawful content so as to force them to act expeditiously in removing content, they will need to provide sufficient information about the posting to enable Facebook to understand what the complaint is about. Clearly this will be case specific, and there may be some cases where little explanation is required and the unlawful nature of the content is self-evident. However, the Northern Irish cases (which will not necessarily be applied by English courts but are likely to be persuasive, at least at first instance) make clear that it is advisable to err on the side of caution and include as much detail as possible.
Finally, it is of course important to note that other defences may be available to the likes of Facebook depending on the cause of action, so an effective notice for Regulation 19 purposes is not a guarantee of liability.
If you require further information on anything covered in this briefing please contact Tom Rudkin(firstname.lastname@example.org) or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2017