Facebook in naked photo dispute

Posted: 24th October 2016

FacebookSocial media websites are under no duty to monitor information that they transmit for indications of illegal activity. However, in one important case, a judge has refused to strike out a teenage girl’s claim that Facebook did not do enough to prevent a naked photograph of her repeatedly appearing online.

The girl was aged 14 when she claimed to have been induced by an adult’s threats to send him sexualised images of herself, including one in which she was totally naked. The man was said to have threatened to post the images online unless she agreed to meet him face to face. When she refused to comply, the naked photograph was posted on a so-called ‘shame page’.

The image was taken down after Facebook was informed of what had happened, but it continued to resurface on the site intermittently and the girl’s lawyers eventually launched proceedings, alleging a failure to protect her from harassment, misuse of private information and breaches of the Data Protection Act 1998.

Facebook argued that the girl’s claim should be struck out on the basis that it was frivolous, vexatious and stood no prospect of success. By operation of Article 15 of the E-Commerce Directive, Facebook was under no general obligation to monitor information that it transmitted or stored or to actively seek facts or circumstances that might indicate illegal activity.

The judge struck out the girl’s claim that Facebook should have blocked all shame pages on its site. To require Facebook to take that step would interfere with freedom of expression rights and that part of her claim had no reasonable prospect of success. However, in allowing the remainder of her case to proceed to trial, the judge noted that it was for Facebook to prove that it had acted reasonably and expeditiously in its attempts to remove the photograph from its site.