Pubications > What must Facebook take down?
What is it that a Facebook Users can compel Facebook to take down and what exactly is a "Take Down Right"? There has been a lot of media attention in recent weeks about the desecration of Tribute sites on Facebook. There are even vigilantes who seek to locate and prosecute those responsible in what only can be described as the "Wild West" of the new millennium. |
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Facebook's agreement with Users
Facebook's Statement of Rights and Responsibilities (Statement) derives from Facebook's principles and is, in effect, the contract between Facebook and its Users. It is also referred on Facebook as its "Terms". The Statement contains provisions relating to privacy, sharing content and information, other people's rights and a variety of other provisions including termination and disputes. It joins a range of other documents that would, on the surface, appear to form part of the Statement. The Statement reflects the terms of the agreement between the account holder (User), Facebook and other account holders.
Jurisdiction
Assuming that the Statement is contractually binding, (search click wrap and browse wrap contracts if curious) in the event of a dispute, any such dispute must be brought in a State or Federal Court located in Santa Clara County, California. The law of the State of California applies and Users submit to the personal jurisdiction of the Courts of Santa Clara County.
What this means that if a User (who is prima facia party to a contract with Facebook) has a dispute with Facebook, they must bring an action in a Californian Court and US law applies. Considering that Facebook's users are worldwide, that's practically difficult for most.
Take Down Rights
Certain defined Take Down Rights are created in the Statement as follows:
Key terms of the Statement
3.6. |
you will not bully, intimidate, or harass any user; |
3.7 |
you will not post content that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence; |
3.10 |
you will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory; |
5.1 |
you will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law. |
Facebook's right to take action against Users
4.8 |
if you select a username for your account we reserve the right to remove or reclaim it if we believe appropriate (such as when a trademark owner complains about a username that does not closely relate to a user's actual name). |
5.2 |
we can remove any content or information you post on Facebook if we believe that it violates this Statement. |
5.3 |
we will provide you with tools to help you protect your intellectual property rights. |
5.5 |
if you repeatedly infringe other people's intellectual property rights, we will disable your account when appropriate. |
Source: Facebook Statement of Rights and Responsibilities accessed at http://www.facebook.com/#!/terms.php?ref=pf on 25 March 2010.
Who can apply for a Take Down?
The Statement creates rights and obligations for both Facebook and its Users and other than reporting alleged breaches of the Statement, it is the User, (or their Authorised representative) or the person who appears to have had their rights infringed that must bring the action for breach of the Statement.
Tribute site desecration
A Tribute site is a page created by a User in memory of someone who has passed away. In recent months there have been several Tribute sites created for Australians who have passed away that have been subsequently desecrated by child pornography, indecent and morally reprehensible materials posted unidentified Facebook Users. As you would expect this is an extremely unpleasant experience for the family and friends of the deceased.
The User(s) who desecrated the Tribute site (Trolls) would seem to be in breach of clause 3.7 of the Statement. Facebook then could, if they choose, terminate the account of the offending User(s) according to clause 5.5 and may decide to remove the hateful, threatening or pornographic images as provided for in clause 5.2.
What can Users do?
Facebook encourages Users to report content that they find "questionable or offensive" and to restrict the privacy settings to manage their pages or groups that they set up. This however presents a practical difficulty for Tribute sites as they are designed to be open to allow a community to express their collective remorse.
Users can report content that has been flagged with a "Report" or "Report Page" tag (Report). When a user makes a Report, they are asked to provide one of the following reasons for making the Report (depending on where it comes from):
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inappropriate content; |
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inappropriate or pornographic picture; |
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fake page; or |
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attacks individual or group. |
Presumably, after a Report is made Facebook then decides whether or not to take the offensive material down and responds with a pop up saying that and "an administrator will review your request and take appropriate action" (Alleged Promise).
In the context of Tribute site desecration, the issue appears to be whether Facebook's Alleged Promise is contractually binding and what its exact scope is. Further issues would also seem to arise regarding the enforceability of Facebooks Statement with Users to protect against Trolls.
What is the effect of the Communications Decency Act?
The Communications Decency Act (CDA) 47 U.S.C.S 230 protects web-based services providers from liability even after the provider is notified of the existence of objectionable content on its site. The CDA also provides protection from liability where Users post defamatory statements.
Goddard v. Google, Inc., No. 08-2738, 2008 WL 5245490, 2008 U.S. Dist. (N.D. Cal. Dec. 17, 2008) (Google) is authority for the proposition (amongst others) that claims a website operator negligently undertook to remove harmful or offensive content are barred by the CDA. To impose liability in this instance would mean treating Facebook as a publisher of the content it failed to remove. Clearly it is not. The Trolls that created the offending material are prima facie liable not Facebook.
However Fogel J in Google cited Mazur v eBay, No C 07-03967 MHP, 2008 WL 618988 (eBay) in obiter saying that certain promissory conduct by a defendant may remove it from the protections of the CDA where eBay made "affirmative representations" to users that its live auctions were safe", p10 at 22. Therefore, eBay is proposition that an interactive service provider may be held liable for creating an expectation of certain online conditions, but failing to enforce them.
The untested issue would seem to be whether or not the Alleged Promise is sufficient to exempt Facebook from the exceptions of the CDA because it amounted to an affirmative representation to Users who made the Report. The moral issue is whether Facebook should immediately remove content that desecrates Tribute Sites.
Does Facebook know?
In writing this article I noted that my own profile page does not appear to have any "Report" tabs on it. Could that be because Facebook knows that nothing on my page is defamatory, offensive or otherwise in breach of clause 5.1?. Curiously, when looking for what I would describe as "offending materials", it would seem that the Report tab appears regularly. Is it possible that Facebook knows?
Hate Sites
A Hate Site is a page that has been created about someone who has been accused of a crime. In Australia, comments made about open cases are "sub judice" or prejudicial to the administration of justice and may amount to contempt of Court. Users who make statements and express opinions about open cases may be publishing extra-curial material which could interfere with a fair trial.
This is an Australian law that may be similar to those in a range of jurisdictions worldwide. The question is whether clause 5.1 of the Statement could be deemed to be applicable to create a positive obligation to immediately take down "sub judice" comments as prima facie, they breach the law.
The question is whether this creates a cause of action under clause 5.2 if Facebook does not immediately take down any sub judice material. Presumably the immunity created by the CDA applies, however the individual Users, may still be guilty of the offence.
Clearly identified Take Down Rights
Trademark and Copyright infringement
For intellectual property infringements which are categorised as Trademark or Copyright, Facebook provides a mechanism as created by clause 5.3 of the Statement to allow the intellectual property owner (or their authorised representatives) to report infringements.
Conclusion
This article may raise more questions than it answers as most of the issues raised are untested by the Courts. In the Wild West of the new millennium, new issues seem to appear on a daily basis. The unfortunate part of the Wild West is that their does not appear to be an easy or clear remedy for those affected by Tribute site desecration.
"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances".
Related Legal Practices
Rostron Carlyle also has the following related speciality Practices that can assist organisations :
Intellectual Property Practice
Defamation and Media Law Practice
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