Facebook Admits it is Powerless to Stop Young Users Setting up Profiles . . . But in Doing so Finds Itself Having to Account to the Court
12 September 2014
Practice Area: Media and Entertainment
Facebook admits it is powerless to stop young users setting up profiles[i] . . .But in doing so finds itself having to account to the Court.
In HL (A minor) v Facebook Inc –  NIQB 101, which involves a girl (12) who had used Facebook to upload inappropriate photographic images of herself and post sexually suggestive messages. The girl had repeatedly used different accounts to do this and had given incorrect details of her age. The plaintiff was a vulnerable child who had been involved with local social services, and had been using Facebook for inappropriate purposes since she was 11 years old.
Despite the fact that these accounts were subsequently deactivated after being discovered by Facebook, it was revealed in August 2011 that the child had continued to use another account for the same purposes.
The Plaintiff’s case against Facebook was that it was too easy for her to set up accounts despite the fact that she was below the required minimum age. It was alleged that Facebook had failed to prevent her access to this social network site, despite being aware of the risks open to vulnerable children such as the Plaintiff. The defendants were alleged to have failed to require neither age and identity verification nor parental consent prior to the creation of an account, and for publishing the telephone number and location of the plaintiff together with sexually suggestive and inappropriate photographs. Due to the fact that these details were made available, the Plaintiff received sexually explicit messages from other users.
The Plaintiff also alleged that Facebook were in breach of the Harassment (Northern Ireland) Order 1997, the Data Protection Act 1998, the right to privacy and family life pursuant to Article 8 of the European Convention on Human Rights and Fundamental Freedoms as enshrined in national law by the Human Rights Act 1998.
Facebook had applied for an order to strike out interrogatories served by the plaintiff, who had sought an order for specific discovery along with an order compelling Facebook to reply to a notice for further and better particulars of their defence.
Some of the interrogatories followed the appearance of a newspaper article in ‘The Guardian’ on 23 January 2013 entitled “Facebook admits it is powerless to stop young users setting up profiles: Director of Policy for UK and Ireland admits company has not got a mechanism for eradicating problem of underage users”.
The article contained quotations attributed to Simon Milner, Director of Policy for Facebook UK and Ireland. The article quoted Milner as saying:
“We haven't got a mechanism for eradicating the problem [of underage users]".
The further interrogatories had sought information in respect of Facebook’s mechanism for verifying the age of users and of reporting alleged misuse of the social network by children.The plaintiff also sought specific disclosure of documents relating to the number of active users amongst other particulars.
Gillen J, after the Guardian article had been brought to his attention, held that the Plaintiff was entitled to argue that Facebook had known thatsignificant numbers of underage users operated accounts, and that this would affect the nature of a duty of care owed by the defendants in order to combat this mischief.
The judge held that if the Guardian newspaper article was attributable to Facebook, then the Plaintiff was entitled to interrogate Facebook on most of the interrogatories arising from the article, except for those which he deemed were matters of opinion and interpretation which were not suitable for interrogatories.
The judge stated:
“If these words were spoken by someone on behalf of or with the authority of the defendants then these interrogatories arising therefrom are necessary for disposing fairly of the action and costs will be saved by avoiding the necessity of proving when they were said, to whom they were said and by whom they were said”.
Not all interrogatories were upheld however. Facebook was not ordered to comply with an interrogatory seeking to ascertain whether they had established a mechanism for reporting underage users because the court asserted that the information had not been retained. In a similar fashion, interrogatories seeking to establish the number of people employed by Facebook to scrutinise their network, whether these people had legal qualifications or any qualifications relevant to child protection were proper. These were ordered to be withdrawn on the basis of Facebook's assertion that the information was unavailable. Significantly however, it was held that the plaintiff would be entitled to cross-examine the defendants on these matters at the appropriate time and Gillen J reiterated that he was open to be persuaded at trial that the defendants’ arguments were flawed.
Gillen J also held it was relevant to this action to ascertain the nature of any method of verification for children, and the interrogatories dealing with those who held credit cards may have permitted the plaintiff to argue that parents could underwrite their children’s accounts. However, interrogatories concerning age and identity verification and finances were deemed insufficiently relevant and too remote from the issue at hand.
The plaintiff had sought notes and records in relation to the number of active users, profile or page account holders in Northern Ireland and elsewhere. Gillen J considered that specific discovery should be made where the documentation contains notes and records relating to the use of the defendants’ network by children under 13 held by the defendants between 2011-2014, insofar as it is possible to be obtained with reference to Northern Ireland.
However, upon consideration he declared that all of the related documents requested by the plaintiff were not appropriate to be discovered on the grounds of relevance or benefit to the plaintiff, as full disclosure was disproportionate and amounted to an oppressive request given the obvious nature and size of the task.
On the whole however, it was held that discovery should be made of documents relating to the underage Facebook users over three years in Northern Ireland or the United Kingdom insofar as it was possible Facebook possessed them. Gillen J insisted that the plaintiff may argue at trial both that Facebook’s averments were lacking in credibility, or, if they are credible, that they serve to flaw the defendants’ defence.
The plaintiff argued that registration details of named persons and the account activity for a specific person were discoverable. Gillen J agreed and decided that specific discovery of the totality of the plaintiffs account activity for the said person was indeed to be discovered.
Gillen J remarked in his conclusion that:
“a well trammelled test in deciding whether a point asked for in the Notice is proper, is to ask ‘would the point be proper if the respondent had himself inserted it in his own pleading?’ ”
Some of the more vague, uncertain or irrelevant requests were thus refused.
In considering the overriding objective which requires the court to deal with each case in a manner proportionate to the importance of the case, the complexity of the issues and the need to recognise that the court’s resources, Gillen J decided that the plaintiff’s notice of particulars created a risk of being oppressive, overly time consuming and costly. He held that many of them were self-evidently not matters for particulars and more appropriate for discovery or interrogatory applications.
Finally, Gillen J held that particulars purporting to extract information as to how such measures would prevent children registering were appropriate questions to be raised in the Notice for Particulars.
The judgment in this case is a classic example the law being applied in a modern age. Not only do online resources regularly form the basis of evidential issues in cases coming before the courts but newspaper clippings can still be relied upon to advance argument.
For more information, please contact Olivia O'Kane.