A UK High Court awarded Matthew Firsht and his company damages for defamation and breach of privacy after false statements about him and his company, as well as his personal information, appeared on Facebook. The information, which was not all accurate, was posted on a fake profile page and included Firsht's supposed sexual orientation, relationship status, birthday, and political and religious views. In addition, a Facebook group had been created which insinuated that Firsht owed significant money and that he had avoided paying his debt by lying.
The fake profile and group were visible on Facebook for 16 to 17 days before Firsht discovered them and asked Facebook to take them down. Firsht then obtained a court order requiring Facebook to disclose the registration information of the user who was responsible for creating the false profile and group, including the user's IP address. That IP address, as it turned out, belonged to one of Firscht's former school friends, Grant Raphael.
Raphael did not have a substantive defence to either the defamation or the privacy claim. Rather, he denied setting up the false profile and the group — he claimed that a stranger, who had visited his apartment at the relevant time, was the culprit. After reviewing the evidence, the court rejected Raphael's account and found him liable.
In determining the size of the damages, the judge noted that the extent of the publication was not clear. Because Facebook does not keep statistics on the number of people who view group pages, it was not known how many people had seen the offensive materials. Based on the evidence before the court, it appears that only a handful of people had visited the group page. The judge also considered the limited time that the group and profile pages were visible.
At the same time, the judge noted "Facebook is a medium in which users do regularly search for the names of others whom they know, and anyone who searched for the name Mathew (sic) Firsht during those days will have found the false group without difficulty."
The judge awarded £15,000 to Firsht and £5,000 to his company for defamation and £2,000 to Firsht for breach of privacy. Since the judge awarded aggravated damages as part of the defamation award, the judge declined to award them again for breach of privacy, even though the breach was apparently motivated by spite, was deliberate and would otherwise have attracted such damages.
McCarthy Tétrault Notes:
Two points of particular interest arise out of this decision. The first is a warning to those who would attempt something similar and think that their actions will be anonymous. When faced with a court order, social networking sites like Facebook can be required to disclose a great deal of information about a site user.
Second, the court endorsed the existing jurisprudence that has awarded only relatively modest damages for breach of privacy rights per se. The decision, if it carries any weight in Canada, suggests that courts will award generous damages for breaches of privacy rights only (i) when malice is involved, such that aggravated damages are appropriate; or (ii) if actual harm flows directly from the breach, such as losses attributable to identity theft.
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