Recent events have shown how difficult it is for Facebook to navigate between censorship and protection. Photograph: Thomas White/Reuters
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.
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 found itself in difficulty after first removing an iconic 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 onto 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.
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 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 grass-roots 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 over 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.”