Facebook revenge pornography trial in Ireland 'could open floodgates'
Facebook revenge pornography trial 'could open
floodgates'
Case of 14-year-old taking social network to court over
naked picture has already resulted in others seeking legal advice Recent events have shown how difficult it is
for Facebook to navigate between censorship and protection.
By Alexandra Topping Sunday 9 October 2016 15.21 BST Last
modified on Sunday
9 October 2016 22.00 BST
A legal case against Facebook, which will involve a
14-year-old taking the company to court in Belfast over naked images published
on the social network, could open the floodgates for other civil claims,
according to lawyers who work with victims of revenge pornography.
Facebook's forthcoming trial, which centres on the claim
that it is liable for the publication of a naked picture of the girl posted
repeatedly on a "shame page" as an act of revenge, has alarmed the
tech world and could have a seismic impact on how social media companies deal
with explicit images.
The case has already resulted in victims of revenge
pornography seeking advice about whether they too could have grounds for legal
action, according to Paul Tweed, media lawyer and senior partner at the law
firm Johnsons.
"A case like this risks opening the floodgates for
other civil cases to be taken against Facebook and other social media sites,"
he said. "We've already seen an increase in the number of people calling
to find out more. I can see it being a very real problem for all the social
media sites going forward."
Last week, a high court judge rejected Facebook's attempt
to have the claim struck out, and the case is likely to be heard in the new
year. The girl's lawyers say the photograph, which the girl's parents say was
extracted from her through blackmail, was removed by Facebook several times
after being reported, but it had not been permanently blocked.
Revenge porn: the industry profiting from online
abuse Read more A lawyer for Facebook
argued the claim for damages should be dismissed, saying the company always
took down the picture when it was notified. They pointed to a European
directive that they claimed provided protection from having to monitor a vast
amount of online material.
A Facebook spokeswoman said there was "no place for
this kind of content on Facebook and we remove it when it's reported to us. As
outlined in our community standards, nudity and sexual exploitation are not
allowed."
The girl, who cannot be named for legal reasons, alleges
misuse of private information, negligence and breach of the Data Protection Act
by Facebook and is claiming damages. She is also taking legal action against
the man who allegedly posted the picture.
Recent events have shown just how difficult it is for
Facebook to navigate the precarious path between censorship and protection,
openness and responsibility.
Earlier this month, an Italian revenge pornography
victim, who won a case to have material removed from search engines and social
networks including Facebook, killed herself.
Just a few days earlier the social network faced
criticism after first removing a famous image of a naked girl fleeing a napalm
attack during the Vietnam war from the Facebook page of writer Tom Egeland
before removing it again when the Norwegian prime minister reposted the image
in solidarity.
Only after a minor insurrection of Facebook users, who
accused the site of censorship, did Facebook row back from its original
position, with the chief operating officer, Sheryl Sandberg, writing a
mollifying letter in which she
admitted: "These are difficult decisions and we
don't always get it right."
The Belfast case is also likely to shed light on the
network's use of "hash"
technology, such as the Microsoft programme PhotoDNA,
which enables users to scan the digital fingerprint of a photograph, and then -
if necessary - prevent it from appearing on the site again.
Facebook currently actively scans every image uploaded on
to the site, and uses PhotoDNA to block known child abuse images. Other
potentially problematic images, such as those in revenge pornography cases,
have to be reported and "reviewed" before they are taken down. But
critics argue that if it has the technology to catch other photographs that
cause distress, it should do more to protect users from repeated harassment.
"We often have clients where offensive content is
repeatedly posted to a social media platform so the victim has to play an
endless game of 'whack-a-mole' to suppress new content," said Iain Wilson,
a solicitor at Brett Wilson who specialises in such cases.
Italy grapples with suicide of woman taunted over online
sex video Read more The fact that
Facebook waits until pictures have been reported, unless they are known child
abuse images, before taking action was no longer sufficient, according to John
Carr, a leading authority on children and the internet.
"Facebook is like a public utility for young people,
it plays a massive role in their lives," he said.
"There is a widespread feeling that [Facebook] is
not doing enough to tackle content that their own terms and conditions
forbid," Carr added. "They should be more energetically engaged in
policing the content."
But there may be another reason Facebook is not removing
images before they are reported, in addition to its commitment to - and
commercial reliance on
- "radical transparency". Under current EU law
social media sites are immune from liability for content as long as they react
quickly to complaints, under a "notice and takedown" mechanism, said
Carr.
One reason they could be reluctant to proactively search
for all potentially abusive images is that, ironically, by assuming some level
of editorial responsibility, in theory they could be held liable for the abuse
they miss.
"It's all a mess," he said. "Which is why
we need a specific law saying that if companies try and prevent bad content,
they won't lose their immunity if they don't always get it right."
Facebook changed its community standards in 2012 to crack
down on revenge pornography and "sextortion", banning nude images
when they are reported. It also works with charities to target paedophile
networks and on "think before you share" campaigns, said a Facebook
spokeswoman.
Reporting links against every bit of content on the site
flags potential abuse to a "dedicated teams of reviewers who will promptly
review reports and take action if content violates our community
standards", the spokeswoman said. "We care deeply about protecting
people's safety, and work with charities, academics and experts across the UK
and Ireland to develop grassroots education programmes and help create an
environment where everyone feels safe."
Even if Facebook and other social media sites started
proactively filtering potentially distressing images, by far the greater
problem lies in revenge pornography and non-specific pornography sites,
according to Laura Higgins, creator of the Revenge Porn Hotline. In a recent
case in Scotland a hacker uploaded naked photographs of at least 20 victims,
leaving one woman feeling "totally humiliated".
Once images are online, they can be copied and reposted
to dozens of other sites, making total removal extremely challenging. The
hotline has received more than 5,000 calls since it was launched in February
2015, and just under 23% of them involve Twitter, Facebook and Instagram.
"In my experience Facebook are very quick to react
when an image is reported," Higgins said. "The real issue is these
dedicated revenge porn sites that incite users to download images and send
victims hate. If Facebook are to be held responsible, then how can these sites
be even allowed to exist?"
It will take more than one high profile case to remove
other barriers to victims of revenge pornography, whatever their age, receiving
justice.
Although a recent poll revealed that 75% of respondents
were in favour of victims receiving anonymity, the government shows no
indications of classifying the crime as a sexual offence. This means the vast
majority of victims will never seek justice, said Julie Pinborough, director of
the legal advice centre at Queen Mary University, which provides pro bono legal
advice for victims.
"Often the prospect of going to court for victims is
unbearable; they feel they have already been judged and they don't want to go
through the abuse again."
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