How do you challenge Facebook if they refused to take down offending and illegal material? I am sure this is already a common problem for people and will only increase as social media and the internet invades our lives even more.
I was recently involved in a family law case where the ex-partner had posted a number of illegal, defamatory, and demeaning statements about her on Facebook. The illegal statements were in relation to reporting on family law proceedings, which are “in camera” and private, and also involved publishing her personal details and home address where the child at the centre of the proceedings lived.
Facebook has its own complaints procedure (“Report this link”) which I used to point out the illegal and defamatory statements. Nothing happened. I then wrote directly to Facebook head office notifying them of the infringing material. Nothing happened immediately. In a further letter I mentioned that as they had been notified of the infringing material, and failed to remove it, they would be joined to any defamation proceedings that issued. Suddenly the post – and indeed most of the content of the Facebook page – was removed.
In effect my letter was relying on s27 of the Defamation Act 2009 and partly referring to Section 40(4) of the Copyright and Related Rights Act 2000. Section 27 of the Defamation Act refers to the Defence of innocent publication. If someone has been told of the defamation then they cannot rely on the fact that did not know it was a defamatory statement.
Although the Copyright and Related Rights Act 2000 is in relation to the publication of copyright works, Internet Service Providers and organisations such as Facebook and Google are well aware that a similar argument can be made in relation to breaching other rights of individuals. Section 40(4) provides that internet service providers may be liable if they fail to remove infringing material when asked to do so.
It appears that Facebook took steps to deal with the problem when they accepted they could be liable if they are told of a breach and refuse to do anything about it. More importantly, it was made clear that they could also be liable for Court costs if proceedings had to issue to stop the defamation. Perhaps Facebook and similar organisations will be more responsive once the Courts make a ruling – or more importantly – impose penalties for such a case.