Many of us have probably regretted something we posted on Facebook – or had posted about us – but how many of us have ever thought about suing this powerful social media company?
A 14-year-old Northern Ireland girl is doing just that. She is suing after a nude photo of her was posted on a “shame” page and widely shared after that.
Her lawyer argues that Facebook should be held accountable for the repeated republication and dissemination before it was ultimately blocked.
A judge at the High Court in Belfast will decide whether the case will be allowed to proceed. One issue is that of jurisdiction, because the lengthy terms of use section states that any disputes will be adjudicated in California.
A Canadian case with a very different fact pattern involving privacy concerns over publication of a user’s image in advertising products they have “liked” is also to be heard by the Supreme Court of Canada this coming term. In that case, jurisdictional issues have also been raised – a very convenient argument because U.S. law basically provides de facto immunity from any such litigation.
In the United States, such a case would never get out of the starting gate. It’s time to make certain it could, because users worldwide could potentially be forced to start there.
Many states have enacted “revenge porn” laws that allow the victim to sue the individual responsible for disseminating a nude or sexual image, but they do nothing to expand accountability to the platform itself.
These instances are becoming too numerous to ignore. They should serve as a catalyst for revisiting and refining the parameters of the blanket immunity bestowed on interactive service providers – i.e., those who built the platform upon which social media flourishes.
Facebook and Twitter – just to name two – have become Godzillas of the Internet universe. They are powerful and omnipresent. Yet, thanks to a 1996 U.S. federal law, they have managed to elude any meaningful responsibility when use of their site results in a harm being suffered.
Responsibility can lead to liability and liability can lead to coughing up monetary damages. It’s no wonder these online behemoths relish being immune from the same financial risk that bricks-and-mortar businesses have to deal with every day.
Enacted 20 years ago – a couple of centuries in computer years – Section 230 of the Communications Decency Act (CDA) states that Interactive Computer Service Providers (think Facebook and the like) are not responsible for any third-party content posted on their sites. In plain language, it means that whatever Joe Frat Boy puts up on his page is not within their control. They can effectively wash their hands of the whole affair.
Congress might have been acting in good faith. Back in 1996, they believed the Internet to be in its infancy and in need of the protection that would allow it to spread its wings. Prior to this provision, defamation suits were being brought against service providers using traditional models of publishing as their basis.
But the fledgling bird has now become a fire-breathing dragon. Interactive service providers like Facebook are offering the technology, the platform and, most importantly, the audience that make posting and consuming content attractive to individuals and businesses alike.
What’s more, they benefit from it. Facebook has a US$350 billion market value. Instagram, which it bought in 2012 for US$1 billion, is now valued at US$36 billion.
In 1996, Congress saw the Internet as primarily a forum for the free exchange of ideas. It did not wish to squash what it perceived to be a shining example of democracy in action by letting interactive service providers be litigated out of existence.
But whatever reality that might have existed in 1996 has long been supplanted by the undeniable fact that these intermediaries are the de facto superhighways of communication that increasingly define human interaction.
That they can do so with impunity, while at the same time reaping huge financial rewards, is no longer justifiable under any reasonable model of social and corporate responsibility. •
Troy Media columnist and occasional lawyer Gavin MacFadyen is based in the U.S. He is included in Troy Media’s Unlimited Access subscription plan
