Much in the papers this week and last about one Nichola Brookes following her ‘triumph’ in obtaining a Court Order compelling Facebook to disclose details of individuals who had set up groups, fake accounts and other sites to defame and abuse her online.
The press coverage paid scant attention to the fact that Facebook was not the evil party in the situation and did not contest her application, nor did it acknowledge that this is not the first case in which a social media site has produced information to assist with litigation. Indeed, there has been a previous case on strikingly similar facts.
Mr A owned company B and so far as he knew, had no involvement with Facebook. He was therefore more than slightly surprised to discover that not only did he have a Facebook profile, but that his date of birth and supposed sexual orientation were on that profile and that he had apparently joined a number of groups which suggested that he enjoyed certain not altogether tasteful sexual acts. Further, a Facebook group had been set up which accused B of refusing to pay suppliers and A of being an inveterate liar. Unsurprisingly, A was unamused and Facebook agreed to remove both the profile and the group. However A also sought a Court Order against Facebook for disclosure of the IP address of the computer involved in posting the defamatory information. The Order was duly obtained, and the information proved that the computer used belonged to C, an old school friend with whom A had fallen out. C was subsequently ordered to pay damages to A and B for libel and breach of A’s right to privacy, notwithstanding his defence that at the time that the profile and group were created, “he was holding a party at his flat and therefore anyone there may have been responsible”. Given that no-one else at the party would have had either the motive to harm A or B or the password to C’s computer, the Judge was unpersuaded.
A second case dealt with LinkedIn, and involved the theft of clients. An employee left to set up a competing company in breach of his restrictive covenants. His former employer suggested that he had used the contact list prepared in the course of his employment to populate his LinkedIn account and asked for pre-action disclosure of these details. The employee refused, and deleted all the connections from his account in a classic example of “If I can’t play then I’m taking my ball home with me”. His former employer then used the equally traditional “I’m going to ask your Mum if I can share your ball” tactic, and applied for an Order for disclosure of the contacts so the Court could decide who they belonged to. Although the employee had deleted his own account, LinkedIn retained a copy on their servers and this, therefore, could be disclosed.
The Court agreed to grant a disclosure order in respect of those contacts who had been added to the employee’s account whilst he was in employment with his former employer. The employee was ordered to serve a letter on LinkedIn asking them to deliver copy of his deleted account to his former employer’s solicitors. That must have hurt.
So, the moral of the story? This is a key and developing area of law, and one where employees and employers have for too long been largely ignorant of the potential consequences of their online actions.