You may recall the post I wrote on the case of HL (A Minor) v Facebook. That case, a ranting polemic filed by the father of an out-of-control minor in Northern Ireland, had the effect of setting forth a practical standard for why requiring all social media users to confirm their identity with a government ID – as some right-wing politicians have demanded as part of their usual grandstanding theatrics – simply will not work in practice. Facebook’s culpability in HL v Facebook was frankly neither here nor there, and in fact, they set forth a good defence showing they had already done everything in their power to prevent the deeply disturbed minor from creating more Facebook accounts.
It is worth noting that the judge in that 2013 case lambasted the father for his “diffuse, extensive and imaginative” court filing. He noted that the father’s filing invoked “the common law, statutory torts, breach of contract, the Human Rights Act 1998, statute law, EU Law, international law, certain laws of the Republic of Ireland, criminal liability, and French jurisprudence.” Quite simply, he was demanding that the courts do things they do not have the power to do, on a scale wildly disproportionate to the situation created by one individual user, using a spaghetti of googled laws which had no practical or legal relevance to the situation.
Perhaps I should not have been surprised, then, to learn that HL (in the form of her litigious father) has come back for round two.
They have filed a case labelled as HL v Facebook Inc, Facebook Ireland Ltd, the Northern Health & Social Care Trust and DCMS  NIQB 61. This new case tries a new tactic in their crusade to blame Facebook for the girl’s offline behavior. And it’s an interesting tactic to be sure: they are claiming that Facebook caused HL to violate her own data protection rights.
It is alleged that the information which she posted was sensitive, personal data within the Data Protection Act 1998 as it related to her sexual life, see Section 2(f) of that Act. That given her age she could not consent to the dissemination of that material. The defence to that aspect of the plaintiff’s claim amongst other matters relies on the data subject, that is the plaintiff, having given her consent to the processing of the data. This raises the important issue as to whether an 11 year old can give consent for the purposes of the 1998 Act.
In other words, the suit alleges that she is not responsible for the information she voluntarily posted about herself, and violated her own data protection rights by sharing it; and Facebook is responsible for all of that because she was 11 at the time.
Clearly HL’s father has been Googling again, because part of his suit references an article he read in the Telegraph about a Moroccan company which handles some moderation duties for Facebook on an outsourced basis. Hence, he wants an investigation into the standards used and the training provided for these outsourced service providers, regardless of whether that particular centre dealt with his daughter’s information. (For contrast, read Wired’s NSFW and desperately sympathetic piece on what those content moderators have to wade through every day.)
So we have a few issues here:
- Facebook supervision over minors’ accounts;
- Facebook moderation over questionable postings;
- Whether you can voluntary violate your own data protection rights and only later seek to invoke them;
- The actions of minor children;
- Where Facebook is legally incorporated in Europe vs where it is used within Europe, and whose law applies here.
These are are interesting questions which have implications for all social media and online service providers. And clearly more transparency and disclosures from Facebook can only ever be a good thing.
But as a mother who often glances nervously at a young girl in the community from a troubled family who is being pulled ever closer towards an abyss every day*, for reasons which have absolutely nothing to do with social media or mobile phones, I can only shake my head at the cognitive dissonance which is determined to hold a social media site to blame for HL being in supervised accommodation with a criminal history by the age of 11. The world is a bit more complicated than that.
(*Yes, I filed a report about my concerns to the right authorities, and looked nervously over my shoulder for six months afterwards.)
About the author
Heather Burns is a digital law specialist in Glasgow, Scotland. She researches, writes, publishes, consults, and speaks extensively on internet laws and policies which affect the crafts of web design and development. She has been designing and developing web sites since 1997 and has been a professional web site designer since 2007. She holds a postgraduate certification in internet law and policy from the University of Strathclyde. Learn about hiring Heather to write, speak, or consult.