Two other articles have discussed the legal basis for objecting to online content regarding yourself or your business but how should you respond to such misuse. The appropriate response in one scenario is unlikely to equally work for another. The complainant should consider the following factors:
- Impact of their own life/business.
- Likely effect of taking action.
- Time to conclusion.
- The actual damage being caused or likely to be caused, including how many people are likely to see the content.
- Considering the above, the strength of the potential action.
One major factor to consider is, who is the person responsible for the objectifiable material and their location. Social media and the internet have allowed people to create content anonymously. Users can hide their identity by choosing an unrelated username or giving a false address. It is also possible to use a third-party agent to register a domain name which will stop the identity of the domain name owner from being listed in a WHOIS search. Networks such as ‘Tor’ can bounce internet protocol (IP) addresses to hide a person’s true location or identity. Trying to get passed these disguises can be time consuming, expensive, and unsuccessful which can make taking action difficult.
It is often easier to identify the party providing the internet platform that hosts the social media site. However, several defences exist to protect these parties on the basis that they are unaware of the objectifiable material. Although, the platform provider or website owner will in some cases have a responsibility to remove unlawful material. Therefore, there are two main actions for the responsive action which are:
- Action against the social media website, blog platform provider or the internet service provider.
- Action against the poster of the objectifiable content.
The Electronic Commerce (EC Directive) Regulations 2002 limit the liability of information society service (ISS) providers where they act as mere conduits, caches, or hosts of information. ISS services include internet or online services. Generally, ISS providers will not be liable for damages or any criminal sanction providing they only took a passive role. ISS providers who host material at the request of a user are not liable for that information, providing that:
- They have no actual knowledge of any illegal activity or information. With regards to claims for damages, they are not aware of the facts or circumstances from which the illegal activity or information was apparent and:
- On obtaining that knowledge they act ‘expeditiously’ to remove or disable access to the information.
Most social media platforms provide a way to report objectifiable material for their review and action. They may suspend an account or take down the content. This process is often designed to be straight forward and simply requires the completion of an online form.
However, most social media sites are operated by companies in the United States of America (USA) meaning they are governed by US law. Websites owned in the USA can seek protection under the US Communications Decency Act 1996. It states that internet service providers may not be held liable for content (whether inaccurate, offensive, harassing, or allegedly defamatory) that is posted on sites they host for their users, providing that they have little or no editorial control over that content. This can sometimes mean that social media platforms decide not to take down material, even when it may be clearly objectifiable under United Kingdom (UK) law. In this scenario legal action may need to be taken in the US courts, even if a UK court has already given judgement to prove that the material is unlawful under US law.
In England and Wales online take down notices and complaints can offer short term fixes such as the removal of material specifically notified to the social media or blogging platform or a fine in the case of a regulatory breach. However, with ongoing problems, a more permanent solution may be needed. In this situation a claim may be needed to seek an injunction to prevent the internet user from repeating or re-posting the same or similar objectifiable material and possibly financial compensation. These claims would usually be based on harassment, defamation, or intellectual property infringement. Equally, a civil order to remove the content may be required if the content has not been removed by the hosting site or poster themselves.
However, going to court is expensive and will require a large amount of time from individuals within the claimant’s business. Legal fees can be substantial and whilst in theory they are recoverable from the other side you need to consider whether the poster is:
- Going to acknowledge the proceedings or:
- Be able to pay and costs or damages awarded.
A claimant can file an application for interim relief at the same time or after the claim itself is filed. This may be an interim injunction, pending the outcome of the proceedings.
It is often advisable to send a letter before action to give the defendant an opportunity to voluntarily remove the objectifiable material and settle any claim for compensation.
At Lawdit Stay Legal our packages do more than keep you on the right side of the law. They also put legal safeguards in place which will protect and assist your business if any dispute arises. With several packages at different price points we offer something for every business. We even offer a free initial consultation so there is no need to hesitate.