First Fakebook case goes to trial

September 11, 2008

The High Court has awarded £22,000 in damages for a successful claim for defamation and misuse of private information arising from a false Facebook profile and user group. This is the first defamation and privacy case relating to Facebook that has reached trial in the UK and offers a helpful insight into how the courts might interpret the law and award damages relating to defamatory material and private information posted on social networking sites.

In the UK there is no “law of privacy” as such.  However, the House of Lords recently decided (in the Naomi Campbell v Mirror Group Newspaper case) that where there has been a wrongful disclosure of information that was obviously private this could lead to an action in the courts. 

Material posted on Facebook

The claimant, Mathew Firsht, did not have a Facebook profile. However, whilst he and his brother were surfing the internet they discovered a false Facebook profile in his name. The fake profile contained true and false information, such as his religious views, sexual orientation, date of birth and a photo of him. A Facebook group page had also been created in the claimant’s name called “Has Mathew Firsht lied to you?”. This Facebook group page made false and defamatory statements about
the claimant and his company, Applause Store Productions.

Order against Facebook   

The claimant first discovered the false Facebook profile on 4 July 2007. It was removed at his request by Facebook on 6 July 2007. The claimant obtained a Norwich Pharmacal Order against Facebook Inc which revealed the registration details of the person who had created the false profile and group page, and the IP address of the computers that had been used to access Facebook in order to create these pages.
The evidence showed that the IP address used to create the profile and user group was that of Grant Raphael. The defendant was an old school friend of the claimant, but they had fallen out a few years earlier.  

The Claim

The claimant brought proceedings on his own behalf for misuse of private information relating to the profile page, and for defamation arising from both the profile page and group page. On behalf of his company, the claimant brought defamation proceedings arising from the group page.   
A defamatory statement is one which lowers the individual or the company in the estimation of right thinking members of society generally. Essentially, the test is whether the statement in question would cause someone to think less of the person or company.

The Defence

The defendant denied responsibility for the false Facebook pages. He claimed that he had a party on the evening when the false profile was created and a group of strangers had attended the party. These strangers stayed overnight and would have access to the internet at the relevant times and must have created the false pages using information from documents on the defendants desk.

The Decision and Damages

The judge found the defendant’s explanation “utterly implausible from start to finish”.  
The judge made the following awards:

• £15,000 to Mathew Firsht for defamation. This incorporated an element for aggravated damages because the defendant had continued his lies throughout his defence.
• £5,000 was awarded to the company for defamation.
• £2,000 was awarded to Mathew Firsht for the misuse of private information. This would have been higher to account for aggravated damages, but the judge thought it was not appropriate to award aggravated damages under both the defamation and privacy claim.

Implications     
 
Typically in these situations the claimant stops pursuing the matter once the offending pages are removed, as often they do not have the funds to continue and do not consider the offending pages to be a threat to their livelihood. There is also the possibility that a heavy handed approach through legal channels may simply inflame the situation.

However, this case shows what can be achieved by a determined claimant. The detailed level of technological evidence was crucial to exposing the defendant as a liar. Anonymous internet users can now be identified through the use of court orders and evidence gathering – both of which will involve the company hosting the offending material.


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