Todays event is giving an interesting application of the law. The issue is actually a lot harder and the impact on Facebook could be severe in the near future. The title ‘Parents lose appeal over access to dead girl’s Facebook account‘ (at https://www.theguardian.com/technology/2017/may/31/parents-lose-appeal-access-dead-girl-facebook-account-berlin) is something that will be discussed for some time to come. You see, the issue is not as simple as some are trying to make it out to be and your own point of view regarding the matter will influence your viewpoint too. So let’s get started.
The subtitle gets to one side of the matter: ‘Berlin court rules parents of 15-year-old, who want to know if she was being bullied, cannot see her chat history‘. Here we see the approach of privacy, the 15-year-old can release this to the parents, but guess what, the 15-year-old girl is dead, deceased, no longer able to make active decisions. We can see “the parents of the teenager, who died in 2012 after falling in front of an underground train, had no claim to access her details or chat history.” Yup that’s a period at the end! You see, is this about privacy of the individual, or is this a minor? The interesting side here, especially when considering the so called united EU nations, the age of consent differs and in Germany the age of consent is 14. I am taking this number as we read in German law (in most nations) the term ‘capacity for sexual self-determination‘, it is the ‘self-determination‘ that matters. The application of Jus Cogens is a cardinal principle in international law. Here we see the ‘the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference‘, the application of consent is not exactly the same, but more important shows the clear age definition, and in addition the impact of being ‘an adult’. As such, the adult 15-year-old has the outspoken right to privacy and a parent cannot overrule it. Here is also the issue about digital inheritance. Can death overrule your right to privacy? Let’s take a really rude example, can any perv freely distribute the consensual porn pics of your mum? Where is the right of self determination, the right of privacy (as she never released these photos in life, can the end of that change this?), what if she sets that out in her will for those digital libraries to be released? It is a very slippery slope when we see interference and censoring here beyond the normal scope of the law. and Digital inheritance is not part of the normal scope of the law. The German court took another point of view. They went with “The court said it had made the ruling according to the telecommunications secrecy law which precludes heirs from viewing the communications of a deceased relative with a third party“, is that not an interesting point of view? It is basically another handle on privacy, yet what if that part is defined in her will (if she had one). Technologically speaking, the fact that the parents could not unlock the phone, or try to access her accounts via another path is also a question that is in my mind. I find it pretty normal that a parent wants to learn whether their child was bullied to death. Is it not interesting that the Deutsche Polizei is not all over that? The next part is actually the most disturbing part: “The girl had reportedly given her mother the login details to her account when she was 14 but the company, having been informed of the girl’s death by one of her Facebook friends, froze or “memorialised” her account. The move meant that photos and posts the girl had shared remained visible, and friends could pay tribute to her, but it was no longer possible to log in to the account“. the ‘having been informed of the girl’s death by one of her Facebook friends‘. How was this verified? You see, we see enormous delays on inappropriate and extremist materials, yet death of a social poster seems to have been almost instantaneous. A slight assumption (and exaggeration) on my side, as there is no clear timeline here.
It is the next part that puts Facebook in a proper bad light, one that their marketing division will require months to address, in addition, how many parents will make a move to deny or demand that non-adults between 14 and age of consent will end up having to remove their accounts? The parents can simply state: ‘No Facebook, or you have to pay for your mobile yourself‘, that should change the issue right proper and quick. You see the quote “Facebook has refused to say who applied for the account to be frozen, also citing data protection. The person who lodged the request would have had to provide Facebook with proof that the girl had died”
So if there has been an actual lodging, and if that was a school ‘friend‘ we can also speculate in equal ways that it is not impossible that Facebook gave active assistance to a murderer. It is interesting how Facebook skated away from that danger, so with the anti-social-media wave at present, there is a decent chance that Facebook just made matters worse for themselves and for other social media providers. The second blunder we see from the Facebook teams is “They argue that the conversations would have taken place on the understanding that their content remained private“, which is only a correct stance to have when it does not involve criminal activities and cyber bullying is actually a crime. H.R. 1966 (111th congress), gives us “Chapter 41 of title 18, United States Code, is amended by adding at the end the following:“, and the added part that matters gives us:
“(a)
Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behaviour, shall be fined under this title or imprisoned not more than two years, or both“, so by facilitating this, Facebook has already created an issue in the US, yet it is not in Germany. In EU, only Spain became evolved enough to include cyberbullying in their penal code. Which is interesting as the Facebook actions would differ per nations, which could also now imply that facilitation for cyber bullies is an actual possibility in Europe. From these points alone, we could state that Facebook did not act illegal, or legally wrong, they were however extremely silly in pushing the buttons in court to the extent they did. Björn Retzlaff, the judge who ruled in Berlin did so on the sound foundations as stated in the telecommunications secrecy law, which has elements for phone, email and internet chats. There is a shallow path the judge walked on and it is not shallow by the actions, but shallow by the defining laws that herald the right of privacy above the need to consider the prosecution of criminals. It is a shallow and slippery path to be on and Facebook might have been better off by assigning a specialist team to that request to at least consider the test whether a criminal path had been or had not been walked. By freezing the account, the parents were left in an empty space that large corporations are now slamming shut like the jail cell that could contain the possible murderer. You see, it is more than just privacy versus inheritance. When we start seeing the Facebook accounts and the ‘owner’ of the account has mental health issues, Facebook will find itself in even more deep water. In addition, the legal issues that we see with Doli incapax and Parens patriae. In addition, consider the application of the Hart–Scott–Rodino Antitrust Improvements Act, as we see it in 15 U.S.C. § 18a. Now consider the application on it when we go towards “Title III of the Act[8] allows attorney generals of states to sue companies in federal court for monetary damages under antitrust laws. as parens patriae, on behalf of their citizens“. Now, you might think that this is a joke. But it is not. As we see Vlogging and Youtube Channels set to higher and higher values under commercialisation, the incomes and rewards really go through the roof, some Vloggers are now getting amounts that a decent amount of CEO’s would go crazy for. What happens when Facebook suddenly interferes with that? and this is not a local thing, this issue could go global, which is an additional issue Facebook can face. Especially as the timeline for freezing is not known, additional questions are here. We can debate the legality of the parents having the account access, especially as you are not supposed to share login details, but in the larger side of things that one item seems small and could have prevented a few things for Facebook.
the weak response from Facebook: “At the same time we are sympathetic towards the family and respect their wish. We are making every effort to find a solution which helps the family at the same time as protecting the privacy of third parties who are also affected by this.“, it is weak, because the part ‘Facebook has refused to say who applied for the account to be frozen‘, that answer alone could solve a few issues. The most adamant of issues being ‘was there intent to avoid criminal prosecution‘. I got there in the easiest way. If the freezer account is also the account linked to the same IP address of the bully, we have the problem in the open (bad for Facebook).
There are other issues, yet there are too many instances of ridiculous statements from tabloids, yet I have to say that in this instance the Daily Mail used a lewd call link to what is actually a really good article (at http://www.dailymail.co.uk/news/article-4531934/Facebook-lets-teenagers-porn.html). The quote “Facebook has pledged to hire more staff, but politicians and charities said stricter guidelines were needed“, so how charities enter the equation? In addition to a reference to politicians, where I would prefer to see their names. As the past have shown that some of these complaining politicians seem to be ‘talked to’ to by members of the clergy who could be looking for sextertainment in the choir section a few hours later. The reference could be found in John 12, Mark 9 and Luke 11 (source: Jimmy Carr). The question is not just how many more staff members to hire and where to place them, there is an increasing need for non-repudiation. If you are adult enough to slag-bitch-harass a young girl to death, you get to be sentenced as an adult in court. The issue is that the law (on a global scale) have failed victims for the longest time. One of the clearest cases of failure was in Canada, where in November 2011, Rehtaeh Parsons committed suicide after she was gang raped (17 months earlier) and subsequent of the Sexual assault was non stop bullied via social media. The Milton-Pepler paper, which might be laughingly be regarded as an ‘inquiry‘ stated: “One conclusion of the report was that Nova Soctian schools “need to do a better job preventing harassment and sexual aggression”“, I would state that “the Cole Harbour District High School had failed their student in distress and in clear danger, under psychic assault has failed their student in need 100%. By not taking the dangers serious and by not properly acting in regards to the need of criminal prosecution, in addition, according to sources, the RCMP did equally not act to the degree they should have and it was only 3 years later that the first boy involved was conditionally discharged with a one-year probation“. It is the mere existence of these failures that require different steps. The acts are growing more and more, more often than not to create their fame or infamy through recognition on social media. Censoring has not been a viable solution for a few years. It is not just the Canadian Parsons case, it is the fact that for every case that does make it to the light of the beholders, there are hundreds of cases that do not even make it to the visibility of the media or courts. As there are now years of events on a global scale, the need of acceptance that accountholders need to be hold accountable for these transgressions become even more important. When their mobile and mobile number gets barred from social media channels for life, people tend to take better care of the words spoken. Ask yourself, how many people leave their car keys on the bar? How many walk out leaving their doors open (OK, that actually happens on a daily basis in Canada), yet the message should be clear, we need alteration of the rules, not of the freedom of speech, but of the accountability of the media you engage with (both press and people). We will always understand that when you are young, you will state things on the wrong moment, events happen, no one will deny it, yet as we see a growing number of events of clear bullying and cyber harassment a new line can be drawn. One that could lower the events. In equal measure there is an increasing chance that those people will seek other venues to propel their vitriolic thoughts, and it will never go away completely, but as the curve goes down, the resources in use could be used to seek new paths in confronting those transgressors, and perhaps find new ways to protect the victims as well.
Whatever is happening now, is as that German couple feels, that the law has been screwing them over massively and in their case there were other legal issues and those will remain; yet as those events are countered one by one, the amount of extraordinary cases with legal uniqueness will also diminish, making the field cleaner and much more clear.
Have a great day and consider to be nice to one another.
Lawrence van Rijn - Law Lord to be 