For many, social media sites extend simply to Facebook and Twitter. However there are also a number of other enormously popular websites for those who wish to interact with others on the internet including (but by no means limited to) Reddit, 4Chan and Ask.fm.
Indeed for certain sections of the public these sites are more popular given their simplicity, ease of use and perceived lack of monitoring. Such failures mean these sites have been in the news a great deal this year.
In April, following the bombings at the Boston Marathon, a number of posts appeared under a thread “Findthebostonbombers” in which users uploaded photographs and surveillance footage in an attempt to identify those responsible. The thread quickly led to the misidentification of missing University student Sunil Tripathi as the bomber. In fact, as it quickly became apparent as events unfolded in Boston, Tripathi had nothing to with the bombings. His body was found in the Providence river the following week. Reddit later apologised for the “online witch hunts and dangerous speculation” that had taken place.
Elsewhere in our series of blogs we have highlighted other examples of bullying and harassment, and this year has seen the problem increase with great rapidity. A common theme running through cyber-bullying and harassment is the ease at which it is possible to open a bogus account and/or post anonymously.
In respect of cyber-bullying, because of the costs involved in civil harassment proceedings, an individual is sometimes left with little alternative but to contact the Police. Unfortunately the Police are, on the whole, reluctant to intervene in cases of what many may consider “playground bullying” and only appear interested in getting involved in cases where threatened violence is a real issue or where it becomes a cause célèbre. Sadly we know from experiences with ask.fm that playground bullying can have tragic consequences
If the Police do become involved they may choose to request the offending account user’s details from the website or ISP in question. Recent figures show that Twitter received 26 such requests from the UK authorities in the first 6 months of 2013 and 15% were complied with. Twitter’s reference to UK authorities is, we can reasonably assume, a reference to requests from the police or intelligence services. Facebook also recently released figures which showed it had received 1,975 requests from the UK – presumably the same authorities – concerning 2,337 accounts in the same period; 68% of which were complied with.
What we do not know is how many requests have been made by UK citizens who want to pursue their remedies in the civil courts. The remedies are there; it’s their enforceability that is the issue. Victims can bring claims under the Protection from Harassment Act 1997 (as amended). The sanctions are damages for abuse to date and an injunction to restrain further contact which, if breached by the harasser is likely to constitute a criminal offence for which they can be arrested and imprisoned.
But for such a claim to be effective it needs to be made against a named individual. So what if the account is anonymous or bogus?
In order to identify such an account it is possible to make a Norwich Pharmacal application to the Court for a third party (e.g. Facebook, Twitter, Gmail or the ISP) to provide the contact information associated with the account. In some cases it may be necessary to obtain identifying information such as IP addresses by way of a separate application before the underlying account information can be identified. However, will Facebook, Twitter or others continue to pay attention to Court orders made in this jurisdiction?
As for anonymous or unattributed libellous comments posted on the internet, the position is likely to change. See our previous article regarding the effect of the implementation of s.5 of the Defamation Act 2013 which will give websites a defence to a claim in the event that it can “show that it was not the operator who posted the statement on the website“.
Another more recent development comes in the form of a recent judgment by the Chamber of the European Court of Human Rights in the case of Delfi AS v Estonia (no. 64569/09). In this case the ECtHR ruled that there has been no interference with the article 10 rights of Delfi AS (a leading Estonian news website) as a result of it being found liable for comments posted on its website, which it removed the same day as it was notified of their existence.
The ECtHR ruled that as the article upon which the comments were made was likely to be controversial Delfi should have exercised greater control in ensuring that the comments posted were moderated and even suggested they should have taken steps to prevent them from being published in the first place.
The ruling has been nearly universally criticised as inconsistent with the established provisions dealing with intermediary liability as set out in the E-Commerce Directive (2000/31/EC).
However some may question why websites should not be subjected to an enhanced level of monitoring in this way. If a site knows an article will be controversial they will readily post it safe in the knowledge that it will boost traffic (and in most cases advertising revenue as a result) and if defamatory comments are posted and subsequently found to be actionable they can rely on the E-Commerce Directive.
A further issue when dealing with most social media sites is how effective any changes to UK/EU law will be. Will sites such as Facebook and Twitter, based in the US and enjoying much greater freedom of expression, give due consideration to changes in the law given the jurisdictional problems claimants face when enforcing judgments awarded against them, or will they remain happy for potential claimants to grapple with difficult jurisdiction and enforcement issues?
One solution may be to close down the revenue streams these websites enjoy if they refuse to lift the legal anonymity they currently enjoy in this jurisdiction. This would no doubt be a controversial proposal to make but one already shown to be effective after Prime Minister David Cameron called on users to boycott “irresponsible websites”.
What is clear is that this issue will not go away until such time as websites and website users find a way of ensuring people can post anonymously so as to enjoy their freedom of speech whilst at the same be identifiable in order that they can be found responsible for the potentially devastating consequences of their unlawful behaviour which have been highlighted all too frequently throughout this year.
Tim Lowles is a Senior Associate at Collyer Bristow and part of the Cyber Investigations Unit.
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