MM V BC, RS and FACEBOOK IRELAND LTD  NIQB 60 15 June 2016
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The Plaintiff was a married woman who had an affair with the Second Defendant, who at the time was in a relationship with the First Defendant. She 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 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 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.