A lawyer looks at recent European cases involving Facebook that highlight issues around defamation and reputation management.

This publication has already written about some of the controversies around Big Tech, Facebook (See here.) In this article, Hanna Basha, of UK-based law firm Payne Hicks Beach, examines how well, or not, the social media platform handles issues matters such as defamation. While standard news outlets, such as this one, have to strictly follow the often tough libel laws in England and Wales, there remains a big question mark over whether social media platforms should be given a pass. With traditional media organisations under commercial pressure, this is not just a legal question either. 

What is the relevance to wealth managers and other advisors to high net worth clients? Well, reputation management is a part of what advisors can provide to clients; there is no shortage of stories out there of how HNW clients and their families can make mistakes. Like or loathe it, social media is part of the landscape.

As ever, the editors of this news service are pleased to share views of guest contributors but do not necessarily endorse all views of guest writers and invite responses. Please don’t be shy of joining the debate: email tom.burroughes@wealthbriefing.com or jackie.bennion@clearviewpublishing.com

Facebook and online social media platforms can be problematic in the battle to protect reputations and private lives. The very purpose of social media platforms is to make communication effortless and they allow people to share information quickly and easily.  Whilst this has enormous advantages, the disadvantages are that defamatory allegations and private information can be shared at the press of a button.  Information is often shared without any proper assessment of whether it should be. In particular there is neither consideration of the damage which could be inflicted nor any assessment of the legal implications. 
 
Once information has been shared it can be difficult to get it removed. Often the aim is simply to get the post taken down quickly before any (further) damage is done rather than to enter into litigation and sue for damages. However, whilst this sounds simple, those posting information may be based overseas, they may have limited funds, or they may simply not engage with correspondence. This may make litigation inevitable and it can be complex, time consuming and potentially expensive. All the while the information continues to be shared and the damage continues to be done.
 
As an alternative to engaging with the poster, it is possible to make a complaint directly to Facebook for a post to be removed or disabled. This can often result in an instant removal of the post. However, the response of Facebook can be variable and if Facebook does not remove the post, it can still be necessary to go to court for an order and this can take many months.  
 
Facebook has publicised recently the steps it is taking to fight fake news and it now has improved processes in place for tackling harassment and online bullying.  However, those who are the victims of defamation and misuse of private information can find Facebook slow or unwilling to act. The problem being that Facebook is keen to respect free speech and it is trying to balance and juggle different defamation and privacy laws in all the countries where information is shared.  
 
Removal of a post from Facebook was the focus of a recent court decision in a case brought by the Austrian Green MP Eva Glawischnig-Piesczek. She asked Facebook to remove a defamatory post about her. Facebook refused to do so. Accordingly, she sued Facebook.  
 
The case went all the way to the European Court of Justice which looked at two important questions. The first was whether the Austrian court had jurisdiction to order that Facebook should actually remove a defamatory post. The question was interesting because what Facebook had done in this case was to geo-block access to the defamatory post in Austria, but it was still available elsewhere in the world. In general, geo-blocking has been considered an acceptable approach to similar issues – for example when Google upholds requests in accordance with the so called “Right to be Forgotten” under the General Data Protection Regulation it only geo-blocks those links in the European Union. The justification for this approach is that a court in Austria should not be able to decide what is published elsewhere in the world.  

The result is that it is necessary for those with global reputations to take steps in more than one country to seek removal of information, which can be time consuming and difficult. The decision in this case, that Facebook should actually remove a post (rather than geo-block it), is therefore a welcome development meaning that those wishing to remove allegations and private information should only need to bring a claim in one jurisdiction.  
 
The second question considered by the European Court of Justice was whether the Austrian court had jurisdiction to order Facebook to remove not only the post complained of but also identical or equivalent allegations from its platform. The European Court of Justice decided that Facebook could be obliged to do so, but only if Facebook did not have to carry out an independent assessment to establish that the post was “equivalent”. The court found that this does not constitute an excessive burden on the platform, particularly where Facebook publicised its automated search tools and technologies. Again, this is a welcome development for individuals wanting to tackle posts in a straightforward manner because, again, only one claim should, in theory, be necessary.  
 
The decision of the European Court of Justice should make it much easier to secure removal of defamatory material from Facebook and other online social media platforms.  This is an important decision which should make it easier to tackle the online damage to reputations in a more efficient and simpler way.  It will be interesting to see how Facebook deal with complaints following this decision.