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HL ( a minor) case versus Facebook

As the usage of social networking sites such as Facebook and Twitter increases so does the challenges which come along with them.

Chief among these challenges is the regulation of such sites and this question of regulation is coming before the court more and more often. Following on from our previous article >’XY v Facebook – Social Media and the Courts’ another case has recently came before the courts in Northern Ireland in relation to injunction proceedings brought against Facebook.

This was the case of HL(a minor) -v- Facebook Ireland Limited  and others [2013] NIQB 25. In this case HL was granted anonymity for the purposes of this application and as such is known only as HL. In this matter the application was brought on HL’s behalf by her Father, Mr AL.

In this case HL was a child under the age of 13 who is described as a “particularly vulnerable young lady”.  The facts relevant to this article are that HL had on a number of occasions created Facebook accounts which were in violation of Facebook’s terms and conditions which were removed following reporting of the accounts.

Mr AL applied to the court for a number of interim injunctions chief among them was that Facebook:

take “all necessary steps” to stop HL from posting any information relating to her on Facebook.com, and,

that Facebook “undertake steps” to ensure that the age and identity of all members or users of Facebook.com within Northern Ireland are verified in advance of permitting access to the site.

All necessary Steps to prevent HL from posting:

The court noted that Facebook had an ‘open registration system’ meaning that anyone who provides their name, a valid e-mail address and agrees to Facebook’s terms and conditions can create a Facebook account.

In their arguments Facebook stated that they have more than 1 billion active monthly users worldwide who between them registered over 3 billions ‘likes’ and comments and who upload around 350 millions photographs per day. They argued that it was not feasible to proactively monitor Facebook and to constantly review this increasing volume of activity to determine if a particular individual has posted content online.

Furthermore they stated that hundreds if not thousands of users shared the same names and that there was no mechanism to prevent an individual from lying about his or her identity and then posting under a false name.

They stated all they could do was act quickly to remove content which violates their terms and conditions when they receive a report about it.

Ensuring the age and Identity of all members

Contained within the Facebook terms and conditions the court identified a number of clauses including:

“Facebook requires individuals to be at least 13 years old before they can create an account?”

“Providing false information to create an account is always a violation of our Statement of Rights and Responsibilities”

Mr AL had asked the court to ensure that Facebook took steps to ensure that everyone who signed up for an account with Facebook was at least 13 years of age.

In common with the arguments raised above Facebook argued that it was not feasible to proactively prevent an individual from registering and creating a Facebook account and profile. Additionally that it would not be reasonable “to review over 1 billion profiles to locate a single user who may be lying about his or her name” nor is it feasible to verify the age and identity of every individual user and that no programme or mechanism existed to do this.

They also stated that any procedure designed to demand verification of identity and age would “categorically deny access to Facebook to millions or people and implicate privacy law concerns thorough out the world”.

Again they state that they act quickly to deal with accounts which violate their terms and conditions.

Judgement

After hearing the parties Justice McCloskey decided not to grant the injunctions sought by Mr AL at this time. He decided that, given the arguments put forward, it was not viable for Facebook to be made to ensure that nothing was published about or on behalf of HL as she could conceal her true identity under millions of guises.

Mr Justice McCloskey further stated that any injunction granted to ensure that Facebook “took all necessary steps” to do something or to prevent something is incapable of effective supervision and enforcement of the court.

He stated that at this stage he accepted the arguments forwarded on behalf of Facebook that there were no mechanisms for preventing access or for verifying age, however stated that this was not a final decision and was based solely upon the facts in this interim application. In summing up he noted:

“The essence of this defence consists of an admission by Facebook that it has created something of a monster which is alleges it cannot control.”

The judge noted that whilst he has dismissed the interim injunction application this does mean that the defence raised by Facebook, that is it not feasible to proactively monitor accounts and there are no mechanisms to verify age and identity, can or should succeed in the case as a whole.

The case continues.

Should you require any additional information on this case or have any queries relating to this area please contact our litigation department.

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