Social Media and the Courts –Article by: Chris Goodfellow
With the emergence of the internet and a more recent surge in the use of social networking sites such as Facebook and Twitter, there is now unparalleled access to information for individuals wishing seek it out.
The phenomenon of social media and in particular the trend of ‘going viral’ (the concept by which information, photographs or videos are shared on the Internet and are viewed and shared by hundreds of people around the world in a matter of hours), has meant that that this information can spread faster and further than ever before.
It is in this context that a debate has arisen regarding the policing or regulation of social media sites. In the very recent past there have been a number of high profile cases regarding the policing of certain social media sites with, for example, Twitter users being prosecuted for ‘Tweets’. However legal regulation of such sites is problematic and any attempt at policing content has proved difficult and controversial.
An application has recently come before the courts in Northern Ireland in relation to the treatment of an individual by other users of the Facebook social networking site.
XY v Facebook
In this case an applicant known as ‘XY’ sought an interim injunction from the court requiring Facebook to remove a group site entitled “Keeping Our Kids Safe from Predators” or, if the court was not willing to order it’s removal, he requested that Facebook monitor this group to ensure that information posted to it previously about Mr XY was not reposted.
In this case the individual involved had previously been convicted and had spent time in prison in relation to a number of offences including indecent assault and gross indecency with a child. This individual had spent time in prison for 15 offences. Following his release a Facebook group page was created entitled “Keeping Our Kids Safe from Predators” in or around August 2012. This group was an ‘open’ group and the content of the group could be viewed by anyone with access to Facebook.
The court was told that certain content was posted to this group which was frightening or distressing to Mr XY such as; the sharing of a picture of Mr XY and specific threats made in relation to his home.
Prior to the matter coming before the court Facebook themselves had removed some of the items posted to this group such as; Mr XY’s name, photograph and the comments made on these posts.
The judge, Justice McCloskey, in his decision weighed up a number of different factors, he considered specifically the Human Rights Act 1998 and in particular the protections offered to the applicant under Article 3 (freedom from inhuman and degrading treatment) and article 8 (right to a family life).
Giving consideration to these rights and in all the circumstances, and the courts duty to act such a way that would be in accordance with the Human Rights Act, the judge made two decisions in relation to this matter:
– Firstly the judge granted the applicant anonymity (i.e. that his name not be published in this case rather he should be identified as ‘XY’, although the judge did note that details of Mr ‘XY’ were already public knowledge and he did not seek to restrict this outside of this case).
– Secondly the judge granted an interim injunction in favour of the applicant.
This injunction stated that Facebook should, within 72 hours of the hearing (by 10am on Monday 3rd December 2012), remove the group website in question; “Keeping Our Kids Safe from Predators”.
This decision was made as the court believed that the existence of this site, even with a number of the offending items and comments removed, constitutes a prima facie unlawful harassment of Mr ‘XY’ and that the continuation of the group would create a real risk of the applicants rights under article 3 and 8 of the Human Rights Act being infringed.
The court however, did not grant the additional injunction sought by Mr ‘XY’. The applicant had sought an injunction that Facebook should monitor the web page in order to prevent the republication of the material that had been removed. In relation to this request the judge took the view that any such order would impose a disproportionate burden on Facebook and would require excessive supervision by the court.
It should be noted in this case that the judge stated that there was no party at the hearing on behalf of the individuals who may have created or posted on this group or from any other party arguing in relation to rights contained in article 10 of the Human Rights Act (freedom of expression).
The full judgement can be found here
The judge was at great pains in this decision to point out that the injunction granted was based solely on the facts of this case. This case should not to be viewed as a door being opened to begin the legal regulation of Facebook or social media rather this was a decision based on these particular facts in order to prevent the Applicants human rights being infringed by this particular group on Facebook.
It is worth noting that this was an interim injunction and this matter may come back before the court for a more substantial hearing in future.
This case shows that in certain circumstances the courts are willing to step in to regulate in relation to activities on social media, however the court makes it clear that this does not represent a watershed moment in the legal regulation of Facebook or any such site.
However, social media and the Internet is relatively new to the law given the recent explosion of this previously unknown phenomenon and as a result there will most likely be more cases in this area in future, not least among them may be a further hearing in this matter.
Should you require any additional information on this case or have any queries relating to this area please contact our litigation department.