An interesting tidbit about social media from a legal perspective has emerged from the tragic death of a young woman early in 2008. She was considered a minor, as are the suspects, so a publication ban on specific names and details was ordered by the court. However, friends of hers were posting on Facebook sharing their grief, honouring her memory, and naming the alleged offenders as well as the victim. In doing so, had they unwittingly breached the gag order, a criminal offence?

The Star article about the Facebook posting can be found here.

Is posting or publishing on Facebook (or other social media) a violation of the court ordered publication ban? Can we define Facebook, or a blog, as a publication?

So when thinking about social media and gag orders, what it really comes down to is the definition. How does one define “publication?” I think it is certainly possible to make a case for Facebook being a publication, and I can see a judge agreeing. I’m no lawyer though, so let’s stick to the facts.

The law in question in the recent case (mentioned in the Star article above) is the Youth Criminal Justice Act. Here are the relevant citations:

Identity of offender not to be published

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Identity of victim or witness not to be published

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Right off the bat, you can see how the individual that posts on Facebook can be held liable, if you consider posting to Facebook as publishing. But can Facebook itself be held liable?

I checked out the Facebook Terms of Service to see if they could be on the hook if someone were to break a gag order. I will confess, I signed up to Facebook with little more than a casual glance at its extensive TOS. Once reviewing it, the most applicable passage that I found is its User Content section. Here’s an excerpt:

You are solely responsible for the photos, profiles (including your name, image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other users (collectively the “User Content”).

On the legal side, here is their Indemnity section, in its entirety:

You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any User Content, any Third Party Applications, Software or Content you post or share on or through the Site (including through the Share Service), your use of the Service or the Site, your conduct in connection with the Service or the Site or with other users of the Service or the Site, or any violation of this Agreement or of any law or the rights of any third party.

The wording from Facebook is, naturally, concrete evidence against their involvement with what you may post. I had initially believed that Facebook claimed all ownership to everything posted on their site, but upon further TOS review I have found that to be incorrect. Here’s the blurb, also contained in the User Content section:

Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.

Facebook does claim essentially unlimited use of what you post as their right, as part of the conditions of using their service, but they maintain that it is your property.

So those are the black and white facts, but where it always gets interesting is in the grey area. Does Facebook constitute a “publication?” Is it considered private or public? Are the users “publishing” details of a case, or just discussing it amongst their friends? Can it, or should it, be held liable for what is said, written or posted through it? Is it liable through its complicit distribution of what is said? If such questions were brought to the court, it would certainly be a landmark case not only for Facebook, but for internet publications as a whole.

I encourage you to post your thoughts, legal evidence or precedents, or just general rants in the comments below! Check out this link to Wise Law Blog, with a post on the same topic.