Northern Ireland court rules against Facebook in “revenge porn” case

The BBC has just reported on a court decision from Northern Ireland.

A 14 -year old girl has brought an action against Facebook seeking damages for misuse of private information, negligence and breach of the Data Protection Act. She alleged that a naked photograph (obtained from her by blackmail) had appeared on their website on several occasions. She is also bringing a claim against the man who posted the photograph as a form of “revenge porn”.

Facebook launched an application to halt her legal action, but the application was refused by a judge in Belfast. The case will now come to trial.

Facebook argued that the company always took down the picture when it was notified to them. They relied on an exemption from liability provided by a European Directive.

Although the judgment is not yet available, it is believed that the reference is toDirective 2000/31/EC. 

http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32000L0031

The objective of this Directive was “to create a legal framework to ensure the free movement of information society services between Member States…..”

Information society services include websites such as Facebook.

Article 12 of the Directive directs Member States to exempt information society services from liability where they are a “mere conduit” for any offending information, which is transmitted, such as a sexualised photograph. Articles 13 and 14 contain similar provisions in relation to “caching” and “hosting”.

The actual wording of Article 12 of the Directive is as follows:-

“Mere conduit"

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the transmission.

2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.i.e. electronic messages and websites.”

The Directive was brought into force in the United Kingdom by the Electronic Commerce (EC Directive) Regulations 2002. Regulations 17 to 19 implement the Directive by creating a defence for intermediary service providers from any liability incurred from the activities of mere conduits, caching and hosting in the circumstances set out in those regulations.

This appears to have been Facebook’s argument.

As stated above, the judgment is not yet available on the Northern Ireland Court Service and it will be interesting to see how the court reached its decision. Very possibly there may be an appeal against the judge’s decision.

However, this is not the first case against Facebook in Northern Ireland.

In MM V BC, RS and Facebook Ireland Limited [2016] NIQB 60 15 June 2016(a case from the High Court of Northern Ireland), the Plaintiff was a married woman who had an affair with the Second Defendant. He, in turn was in a relationship with the First Defendant.

The Plaintiff alleged that she sent three photographs and texts of a sexual nature to the Second Defendant, which had come into the possession of the First Defendant. The First Defendant then sent to the Claimant's husband, to two of her friends, and to a friend of her husband, an email to which the three photographs were attached. The First Defendant included in the email a threat to inflict "enough pain and humiliation matching my own during your love affair". The Claimant also alleged that the Second Defendant was on occasions violent and threatening to her, particularly while she was attempting to bring an end to the relationship.

The Plaintiff asserted that this undermined her independence, her dignity, her right to privacy and was in breach of the Data Protection Act 1998.

Initially she obtained an order to protect her right to confidentiality and privacy in respect of certain personal photographs and information and, secondly to protect her from harassment in the form of communications addressed by the First and Second Defendants to herself and her employers to which she did not consent, and attempts by the Second Defendant to meet her, again without her consent.

The Plaintiff now sought an order that BC and RS, the First and Second Defendants were prohibited by themselves, their servants or agents or otherwise howsoever from accessing or altering in any way their present Facebook accounts. She also applied to the court for an order that each of those Defendants file an affidavit to set out what access they had had to their Facebook accounts since the original orders of the court.

Stephens J sitting in the High Court of Northern Ireland said that the difficulty that had arisen in this case related to the preservation of the First and Second Defendants’ Facebook accounts and therefore the preservation of evidence. The information contained on those accounts would be vitally important in analysing whether their explanations as to the publication of the photograph were correct. The Third Defendant, Facebook Ireland Limited, had stated that they could suspend the accounts of the First and Second Defendants but taking that action would remove every record of what had taken place on those accounts. So all the evidence contained in those accounts would be completely lost. Facebook suggested that before the accounts were suspended that the information on the accounts should be downloaded. They provided a method of downloading that information so that a record could be kept of it. However, that transpired to be an inadequate method of creating a complete record of what appeared on the Facebook accounts. A crucial part of the analysis would involve determining what images were connected to which messages. After the accounts had been downloaded it was not possible to carry out that analysis. The messages could be downloaded, as could the images, but one could not see what images were attached to what messages. The vital connection in this case would be lost.

Both the Plaintiff and the First and Second Defendant did not wish to lose important evidence and so they all sought to set aside the earlier order requiring Facebook to suspend the accounts. In the meantime, the First and Second Defendants had access to their Facebook accounts and either unwittingly or potentially deliberately t might alter the contents of those accounts. There is an obvious need to preserve the Facebook accounts by making an order in the terms sought by the Plaintiff at least until an expert could advise as to the most appropriate method of recording the evidence on those accounts.

However, the First and Second defendants had Article 8 ECHR rights. They had a right to communicate with their friends and they had a right to have access to the information on their Facebook account. Stephens J had asked the representatives of both the First and Second Defendants as to whether a new Facebook account could be opened and the response was that that would be in breach of Facebook’'s own policy. Consequently, the only way forward was for the First and Second Defendants to inform Facebook that they wished to open a further account. No other course could be contemplated by this court. Stephens J would direct that a letter be sent by the solicitors for the First and Second defendants to the solicitor for Facebook (Ireland) Limited saying that a new Facebook account should be facilitated by Facebook, the purpose of doing that was to preserve the present Facebook accounts and that if they had any objections to that they should inform the court before taking any action.

The balance presently came down firmly in favour of preserving evidence. Stephens J would make an order in the terms sought. He commented that he would have thought that Facebook had or should have a method of recording and preserving information that was put onto their accounts so as to assist courts in preventing Facebook being used as a tool to abuse individuals.

The court looked to Facebook to assist.

The courts in England and Wales have also dealt with a number of claims for “sexting” and disclosure of photographs of a sexual nature over the internet.

Last year, in ABC v West Heath 2000 Limited and Whillock [2015] EWHC 2687 the Claimant successfully argued that that she had been emotionally manipulated and encouraged to take and send indecent photographs of herself and the ensuing sexual banter by text. This amounted to the intentional infliction of harm as redefined in the Supreme Court judgment of Rhodes v OPO 2015 UK SC32.

In AMP v Persons Unknown [2011] EWHC 3454, the Claimant applied for an injunction to prevent transmission, storage and indexing of any part of parts of certain photographic images which were claimed to belong to her. The circumstances of the case were that her mobile phone had been stolen whilst she was at University. The phone contained sexual images of the Claimant, as well as other digital images of her family and friends. These images were uploaded onto a free onlilne media hosting service. The Claimant contacted the hosting service and the images were removed in about August 2008. In about July 2008, the Claimant was contacted on Facebook by someone who threatened to expose her identity and post the images online if she did not add him as a friend on Facebook. Another attempt was made to blackmail her using her father’s business public relations team. In November 2008, the images were uploaded to a Swedish website that hosted “BitTorrent” files with the Claimant’s name attached to each. The claim in this case was brought against “Persons Unknown.” This was because until those persons who had downloaded the images had been identified by way of their IP Addresses, and their addresses had been obtained from their Internet Service Provider, they could not be made a party to these proceedings. The Claimant submitted that it would be more cost effective and less cumbersome if the class of persons who might have the files in their possession could be identified by a common characteristic, i.e. any person in possession or control of any part of parts of the relevant files containing the relevant digital photographic images.

Mr Justice Ramsey sitting in the High Court said that the Claimant sought relief to preserve the right of respect for her private and family life under Article 8 of the European Convention on Human Rights. Secondly she sought relief under Section 3 of the Protection from Harassment Act 1997 in the form of an injunction to restrain an actual or expected breach of the terms of that Act. The test under Article 8 was whether the Claimant had a reasonable expectation of privacy in relation to the digital photographic images. In this case, the Claimant had a reasonable expectation of privacy for both the images of a sexual nature and those taken of family and friends. The second consideration was then the balancing of the Article 8 right with the right to freedom of expression under Article 10. In the present case, the rights of the users of the BitTorrent client software to download the digital photographic images and to disseminate them had to be balanced against the rights of the Claimant under Article 8. This was not a case where press freedom was at issue. The balance fell strongly in favour of the Claimant. In this case, there were compelling reasons as to why the “Persons Unknown” should not be notified at this stage of granting an injunction. The material in this case could not be described as journalistic, literary or artistic material. Interim relief could be granted by way of an injunction.

In relation to the Protection from Harassment claim, Ramsey J quoted from Section of the 1997 Act. The term “harassment” was not defined in the 1997 Act, but section 7(2) stated that it included “alarming the person or causing the person distress.” On the current evidence, there had been conduct on at least two occasions; the conduct was targeted at the Claimant; it was calculated, in an objective sense, to cause alarm and distress; objectively judged it would be oppressive and unacceptable in the context in which it occurred and in my judgment would cross the line and be conduct which amounted to harassment, alarm or distress. Therefore, this was a case where it was appropriate to grant an injunction.