Facebook, Illegality and the E-commerce Directive

In light of the judgment in CG v Facebook in the Northern Ireland Court of Appeal, Professor Lorna Woods asks: when is Facebook liable for illegal content under the E-commerce Directive?

The ubiquity of social media platforms and their significance in disseminating information (true or false) to potentially wide groups of people was highly unlikely to have been in the minds of the European legislators when they agreed, in 2000, the E-commerce Directive (Directive 2000/31/EC) (ECD). Facebook itself was launched only in 2004. Despite the changing times and technological capabilities, the Commission has decided not to revise the ECD, specifically its safe harbour provisions for intermediaries, in its current single digital market programme.  Although the ECD seems set to remain unchanged, the application of the safe harbour provisions raises many difficult questions which have not yet been fully answered at EU level by the Court of Justice. CG v Facebook Ireland Ltd [2016] NICA 54) a decision of the Northern Irish Court of Appeal, illustrates some of these difficulties and certainly raises questions about the proper interpretation of the ECD and its relationship with the Data Protection Directive.

Intermediary Immunity - Legal Framework

The ECD provides immunity from liability for certain 'information society service providers' (ISS providers) on certain conditions.  To gain immunity, the ISS provider must be an ISS provider within the terms of the ECD and one of the following must apply:

-           it is a 'mere conduit' (Article 12);

-           it provides caching services (Article 13); or

-           it provides hosting services (Article 14 ECD).

Each one of these three categories provides for a different level of immunity, which seems connected with the level of knowledge the ISS provider is assumed to have of the problematic content. Here Article 14, which deals with hosting, is the relevant provision. It provides:

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.

The recitals to the ECD give more detail as to the scope of services protected by Article 14 and there is a certain amount of case law on this point, notably Google Adwords (Case C-236/08) and the Grand Chamber decision in L'Oreal v. eBay (Case C-324/09). Recital 42 has been pointed to by the CJEU in these cases as relevant for understanding the sorts of activities protected by the immunity. Recital 42 refers to services of a

mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.

The ECJ in Google Adwords referred to this as being 'neutral' (para 113-4). The Grand Chamber in its subsequent L'Oreal decision suggested that advice in optimising presentation would mean a provider was no longer neutral (para 114).

The provision protects relevant ISS providers from liability in relation to illegal content, provided they have no knowledge (actual or constructive) of the illegal activity or information, and that if they have such knowledge, they have acted expeditiously to remove it. In L'Oreal the CJEU provided a standard or test by which one can measure whether or not a website operator could be said to have acquired an 'awareness' of an illegal activity of illegal information in connection with its services, ie whether "a diligent economic operator would have identified the illegality and acted expeditiously".   The CJEU also held that an awareness of illegal activities or information may become apparent as the result of an investigation by the operator itself or where the operator receives notification of such activity.  Article 14 does not protect ISS providers from injunctions, or the costs associated with any such injunctions (see Recital 45).

Additionally, Article 15 specifies that, for those falling within Articles 12-14, Member States cannot impose a 'general obligation' to monitor content to determine whether content is illegal. There has been a considerable amount of dispute as to the relationship between this provision and the scope of immunity, especially given the requirements in L'Oreal.  Recital 40 notes that 'service providers have a duty to act, under certain circumstances, with a view to preventing or stopping illegal activities' and that the immunity provisions 'should not preclude the development and effective operation, by the different interested parties, of technical systems of protection and identification and of technical surveillance instruments made possible by digital technology'. See also Recitals 47 and 48.

The distinction between general monitoring and specific monitoring has yet to be fully elaborated, and is an issue much discussed in the context of intellectual property enforcement, especially as regards keeping pirated copies of materials down after taking them down in the first place.

Facts of CG

Joseph McCloskey opened a Facebook page in August 2012 entitled 'Keeping Our Kids Safe from Predators' in which he published details of individuals who had criminal convictions relating to sexual offences involving children.  This page was not subject to any privacy settings.  One individual who was so named brought action against Facebook and an interim injunction was issued requiring Facebook to remove the page and related comments, on the basis that the comments responding to the posting were threatening, intimidatory, inflammatory, provocative, reckless and irresponsible. This was the XY litigation. Immediately after the page was removed, McCloskey set up a new page, Predators 2. CG was identified on this page on 22 April 2013; his photograph was published and there were discussions about where he lived. Comments included abusive language, violent language – including support for those who would commit violence against CG and for the exclusion of CG from the community in which he lived.  The disclosure of CG's residence was contrary to the position taken by the Public Protection Arrangements in Northern Ireland (PPANI), which took the view that such disclosure interferes with the rehabilitation process.

On 26 April 2013, CG's solicitors wrote to Facebook and its solicitors in Northern Ireland, claiming the material was defamatory and that CG's life was at risk. A hardcopy of Predators 2 page was enclosed. Facebook's response was that CG should use the online reporting tool, but CG expressed a desire not to have to engage with Facebook. By 22 May 2013 Facebook removed all postings on Predators 2, but on 28 May, CG issued proceedings. Subsequently, CG's solicitors wrote to Facebook complaining that the photograph had been shared 1,622 times and that other Facebook users had included comments threatening violence. They identified the main url, but not all such instances which Facebook then requested. This information was provided on 3 and 4 December and removed on 4 or 5 December. A further reposting of the photograph by RS occurred on 23 December, stating that this was what a "pedo" looked like. A letter of claim was send to Facebook on 8 January 2014, identifying the relevant urls and the page was taken down on 22 January 2014.  While CG accepted that the defamation claim was without merit, it was accepted that he was extremely concerned about potential violence as well as the effect on his family.

Judgment at First Instance

The trial judge had to deal with claims against McCloskey, as well as claims against Facebook (see [2015] NIQB 11).  The trial judge, having reviewed the evidence, concluded that McCloskey's conduct constituted harassment of CG. The case against Facebook was based on the tort of misuse of private information. To find that there had been such misuse, there had to be a reasonable expectation of privacy in relation to the relevant information  which should take into account all the circumstances (relying on JR38 [2015] UKSC 42 and Murray v Express Newspapers [2008] EWCA Civ 446). The judge also accepted the submission that the Data Protection Act 1998, and specifically the category of 'sensitive data', provided a useful touchstone as to what information could be seen as private (see Green Corns Ltd v Claverly Group Limited [2005] EWHC 958). The judge concluded that the use of a photograph or name in conjunction with information which could identify where CG lived and any information about his family members were private information. The judge considered that Facebook was put on notice of the problematic nature of the material by the XY litigation (which mentioned the Predator 2 page) and that simple searches would reveal the page, as it had an almost identical name with identical purposes. The trial judge concluded that it was apparent on the face of the posts that consideration of the lawfulness of the posts was needed. As regards the Electronic Commerce (EC Directive) Regulations 2002, which implement the ECD in the UK, the judge rejected the contention that there was an obligation to give Facebook notice in a particular form. So, neither the ECD nor the 2002 Regulations protected Facebook from the claim of misuse of private information.

A further claim under the Data Protection Act was added late in the day. The judge concluded that –in the absence of relevant discovery - CG had not established this proposition. Facebook appealed. CG also appealed as regards the data protection point, but did not pursue this point.

Court of Appeal Judgment

The Court noted that there was agreement that McCloskey's behaviour was unreasonable conduct sufficient to give rise to criminal liability (R v Curtis [2010] EWCA 123), and that the 2002 Regulations do not cover injunctions. The Court agreed that this was an appropriate case in which to order the material to be taken down to protect CG from continued intimidation [para 40]. The Court noted that the tort of misuse of private information and harassment, while complementary, are not the same and that a finding of harassment did not automatically mean that there had been a misuse of private information.

As regards the tort, the Court noted that there was no dispute between the parties that this case was about an intrusion, but that the tort would come into play only if there was a reasonable expectation of privacy in the information, which is a fact sensitive determination.  The Court noted the public interest in knowing about criminal convictions; it also disagreed with the trial court judge about the reading across of the categories of sensitive information in the DPA. It held:

'The fact that the information is regulated for that purpose does not necessarily make it private' [para 45].

Reviewing the material, the Court held that the context of harassment was determinative to the finding that CG has a reasonable expectation of privacy in the material [para 49]. By contrast, RS was protected by principles of open justice which allow citizens 'to communicate the decisions of the criminal justice systems to others' and therefore CG did not have a reasonable expectation of privacy in relation to that posting [para 51].

The Court then considered whether Facebook could rely on the safe harbour provisions of the ECD and the 2002 Regulations. It held that the 2002 Regulations need to be understood in the light of Article 15 of the ECD even though it is not formally implemented in the UK. According to the Court, Article 15 'clearly' applied to Facebook [para 52]. While not expressly stated, the Court's approach is based on the assumption that Article 14 (safe harbour provisions for those providing hosting services) and reg 19 of the 2002 Regulations, which implement it, also apply.

The Court then considered the issue of notice. Facebook argued that CG had not given proper notice, on the basis that CG had not used Facebook's online submission process. The Court of Appeal agreed with the trial court's dismissal of this argument, stating, '[a]ctual knowledge is sufficient however acquired' [para 58]. Facebook challenged the approach taken at first instance, that Facebook had the resources to find the material and assess it [High Court, para 61].  It was also argued that the way the High Court approached the question of constructive knowledge also implied a monitoring obligation. The trial judge referred to the XY litigation; that litigation plus the letters of CG's solicitors; and the litigation together with some elementary investigation of the profile. The Court of Appeal agreed with these concerns.  It stated the question as being:

'Whether Facebook had actual knowledge of the misuse of private information … or knowledge of facts and circumstances which made it apparent that the publication of the information was private'

before commenting that:

'[t]he task would, of course, have been different if there had been a viable claim in harassment made against Facebook [para 62].'

It did not elaborate on the basis or extent of the difference.

The Court concluded that the XY litigation did not fix Facebook with sufficient notice; that it only could do so if Facebook was subject to a monitoring obligation. In any event, knowledge of a propensity to harass did not fix Facebook with notice about the private information. As regards the correspondence, the Court held that this too was insufficient to fix Facebook with notice. While it referred to the problematic content, it did not refer to misuse of privacy. 'The correspondence did not, therefore, provide actual notice of the basis of claim which is now advanced' [para 64]. The Court also considered that there was nothing in the letters to indicate that the information was private. So, while 'the omission of the correct form of legal characterisation of the claim ought not to be determinative of the knowledge and facts and circumstances which fix social networking sites such as Facebook with liability', it is necessary to identify 'a substantive complaint in respect of which the relevant unlawful activity is apparent'. 

Here, since there was no indication in the letter of claim that the address was the issue, the Court did not 'consider that the correspondence raised any question of privacy in respect of the material published' [para 69]. By contrast, in the letter of 26 November, CG referred to the general identification of where CG was living and the threat from paramilitaries. This was sufficient to establish knowledge of facts and circumstances in relation to that particular post. Referring to the CJEU in L'Oreal, the Court noted that Facebook is obliged to act as a diligent economic operator. This point was not argued; Facebook was found to be liable in respect of that post for the period 26 November-4/5 December.

The burden of proof is in the first instance on the claimant to show knowledge; thereafter the ISS must prove it did not have knowledge.

As regards the DPA, it was agreed that Predators contained personal data and sensitive personal data, the issue was whether Facebook Ireland could be seen as subject to the UK DPA.  The ECJ rulings in Google Spain (Case C-131/12) and Weltimmo (Case C-230/14) were argued before the Court. The Court did not accept the submission that Google Spain was limited to its particular facts and the concern that the protection offered by the DPD would be undermined if it excluded out of EU data controllers. The Court here noted that Weltimmo in fact built on the approach in Google Spain. It concluded that Facebook is a data controller established in the UK for the purposes of the DPA.  Although the Court accepted that the ECD does not cover data protection, and this is reflected in reg 3 of the 2002 Regulations, the Court held (at [95]):

'The starting point has to be the matter covered by the e-Commerce Directive which is the exemption for information society services from the liability to pay damages in certain circumstances …We do not consider that this is a question relating to information society services covered by the earlier Data Protection Directive and accordingly do not accept that the scope of the exemption from damages is affected by those Directives.'

Comment

This case is one of a number coming through the Northern Irish court system regarding different types of problematic content and the responsibility of social media platforms to take action against such content.  Shortly before this case was handed down, the High Court handed down its decision in J20 v Facebook Ireland Ltd [2016] NIQB 98). Other cases are working their way through the system: AY, Facebook (Ireland) Ltd [2016] NIQB 76, concerning naked images of a school girl on a 'shame page'; MM v BC, RS and Facebook [2016] NIQB 60, concerning revenge porn; and Galloway v Frazer and Google t/a YouTube [2016] NIQB 7, concerning defamatory and harassing videos.  While CG v Facebook is based in the particular cultural and legal context of Northern Ireland, and raises questions on the meaning of private information, it also leads to questions about the interpretation of EU laws, notably the ECD and DPD.

The first point to note is that the Court of Appeal does not directly address the question of the applicability of Articles 14 and 15 ECD, beyond stating that Article 15 clearly applies. Article 15 is dependent on the ISS provider providing services that fall within one of Article 12, 13 or 14, with Article 14 being relevant here. So the question is whether Article 14 (and consequently reg 19 of the 2002 Regulations) applies here. While the text of Article 14 refers to 'the storage of information provided by a recipient of the service', the case law makes it clear that not any storage will do. Rather, the service provider must be neutral as regards the content, technical and passive.  In this regard, services Facebook provide regarding information of interest to Facebook users (News Feed algorithm and content recommendation algorithm, as well as Ad Match services), may mean that the question of neutrality and passivity here is at least worthy of investigation, in that Facebook may promote certain content (in terms of L'Oreal, para 114). Of course in Netlog (Case C-360/10), the CJEU held that a social media platform could benefit from Article 14, but this does not mean that all will – much will depend on the facts (see eg Commission 2012 Working Paper on trust in the digital single market (SEC(2011) 1641 final, accompanying COM(2011) 942 final).

Assuming Article 14 (and reg 19) applies, the next question is whether Facebook was on notice.  The ECD is silent on the nature of any formalities, leaving it to Member States and industry (via self-regulation per Recital 40) to fill in the detail.  In its 2012 Working Paper, the Commission acknowledged that there were diverging views as to what notice was required, ranging from those who argued that nothing less than a court order should be accepted (seemingly thereby focusing on just actual knowledge) through to those who suggested that general awareness of the use of the site for illegal content was sufficient (which covers constructive knowledge) (p 33-34). It seems there are three main issues here:

-           whether notice has to be given in any particular format;

-           whether notice has to identify the illegality or whether identifying the problematic content will do; and

-           the relationship between constructive notice and Article 15, also bearing in mind the obligations of the diligent economic operator.

Facebook argued of course that a person complaining about content should use the tools provided by Facebook and provide rather precise information.  The Court, rightly, held that to require a particular format to be used would run counter to the aim (particularly with reference to the 2002 Regulations) of facilitating the ability of users to make complaints. The position of the Court with regard to the need to provide urls is less clear. The need to provide specific urls makes it difficult for claimants, especially those who seek orders for content to be taken down and to stay down (seen particularly in the field of intellectual property enforcement, for example even in L'Oreal). In this case, where the Court found Facebook liable, CG had provided specific urls, but the Court is silent on whether the lack of specific urls was a determinative factor in the other instances.  It is submitted that, provided sufficient identifying information about the content is provided, precise urls should not be required especially for a diligent economic operator (discussed below).

The Court focused on the question of whether CG sufficiently identified the reason the content was illegal. In this respect, the Court observes that the omission of the correct legal characterisation is not determinative; to have held to the contrary would undermine the ability of claimants without lawyers to have material taken down. The Court moves on to suggest that the relevant unlawful activity has to be apparent. It does not consider to whom such unlawfulness must be apparent, or indeed the prior question of whether the ECD requires just notification of content or activity perceived as illegal by the complainant, rather than a justification of why the complainant thinks that. While on the facts of this case there are concerns that CG referred to causes of action that were clearly wrong (eg defamation), it is arguable that the Court's position needs further refinement. Certainly the Court's approach on this aspect seems generous to Facebook in terms of what it needs to be told.

In this regard a number of comments can be made.  While, an operator would need to make an assessment about the legitimacy of a take-down request, that is a separate issue from the fact of being notified that someone thinks some content is problematic. Further, there may a world of difference between what a man on the street might so recognise and that which the diligent economic operator should recognise and the detail required for that. Indeed, in L'Oreal, the ECJ held:

'although such a notification admittedly cannot automatically preclude the exemption from liability provided for in Article 14 of Directive 2000/31, given that notifications of allegedly illegal activities or information may turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality (para 121-2).'

This suggests that a diligent economic operator may not just rely on what a complainant said, but may have to take steps to fill in the blanks.  As the Commission reported in 2012, it has been suggested by some that the degree to which it is obvious that the activity or information is illegal should play a role in this assessment.  Some content is more obviously problematic than others. This position is not incompatible with the approach of the Court here: the problem for CG is that an address is not usually that problematic in privacy terms, it was the context (not apparent on the face of it) that made it so [para 69].  This distinction may have relevance for the AY litigation, if not the revenge porn case – depending on the nature of the images.

The final point of concern relates to general monitoring. The rejection by the Court of the possibility of becoming aware of a particular type of content (as from the XY litigation) and being on notice as a consequence deserves further examination. This depends on what is meant by 'general monitoring' as opposed to a 'specific' monitoring obligation, accepted by Recital 47 ECD, and recognised by the Commission in its 2012 Working Paper (p. 26).  It is unfortunate that the Court did not give this more attention. While case law has made clear that filtering of all content, for example, constitutes general monitoring (SABAM v Scarlet (Case C-70/10)), it has been argued - principally in the context of IP enforcement - that searching for a particular instance of content (re-occurring) is not.  Such a broad view of general monitoring as the Court adopted also seems to decrease the space in which the diligent economic operator acts, raising questions about the meaning of L'Oreal.  Note also that the Commission in its recent review noted 'there are important areas such as incitement to terrorism, child sexual abuse and hate speech on which all types of online platforms must be encouraged to take more effective voluntary action to curtail exposure to illegal or harmful content' (COM/2016/0288 final). This suggests that the Commission may expect such platforms to be proactive and not merely reactive.

Perhaps the most significant point, and one on which a reference should perhaps have been made, is the relationship between the ECD and DPD, a point yet not dealt with in English law (see Mosley v Google [2015] EWHC 59 (QB)). The Court accepted fairly readily that Facebook (Ireland) falls under the UK DPA, but then insists, despite the fact that data protection is excluded from the field of application of the ECD, that Facebook pages and comments fell within the "matter covered by the e-Commerce Directive" which provide a "tailored solution for the liability of [ISS providers] in the particular circumstances" set out in the ECD. It did not explain why, beyond asserting that the ECD safe harbour provisions do 'not interfere with any of the principles in relation to the processing of personal data, the protection individuals ... or the free movement of data' [para 95]. In this assessment, the Court overlooked the fact that, under the DPD, a remedy must be provided to individuals, so as to make effective their rights and that the protection awarded to data subjects should not vary depending on the mechanism used for that processing. Furthermore, Recital 14 to the ECD elaborates that:

'The protection of individuals with regard to the processing of personal data is solely governed by Directive 95/46/EC …..the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data.'

Whilst a Member State is free to provide more far-reaching protection to intermediaries, this freedom reaches its limit when it conflicts with another harmonised area of EU law, such as data protection. The Court's position on this point, and especially its reasoning, in the light of the terms of both directives, is not convincing.

In sum, the outcome – liability for Facebook on one aspect of the content posted – sounds on the face of it like a narrowing of immunity.  The reality points in a different direction. While there are a number of problematic issues with which the Court had to deal, the impact of this judgment lies in its statements of general principle. Significantly, these fell into areas ultimately governed by EU law, rather than purely domestic matters. It is far from certain that those issues are clearly determined at EU level, nor that the Court's assessment here is free from doubt.

Lorna Woods is Professor of Internet Law at the University of Essex.

This article is an edited version of her blog post on the EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/.

Published: 2017-01-20T12:31:51

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