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Defamation on social media? Surrender of details is possible!

Defamation on social media? Surrender of details is possible!

On 11 May 2016 the District Court in The Hague ruled that, under certain circumstances, a social network such as Facebook is under a legal duty to (among other things) provide the name and address details of users if such users post harmful and unlawful information.

Social media users often hide behind aliases or user names which cannot be traced to their real name in order to air their opinions on third parties online. The question is when the social media platform must hand over the name and address details of these users.

The District Court ruled:

‘4.1 (…) This could in particular be the case if (i) it is sufficiently likely that the information published on the social network is, in itself, unlawful and harmful towards the third party, (ii) the third party has a real interest in obtaining the details, (iii) it is likely that in the specific case there is no less drastic possibility of tracing the details and (iv) the weighing up of the relevant interests of the third party, (in this case:) Facebook and the administrators of Facebook pages, mean that the interests of the third party should prevail.’

The court tests against the criteria of the Supreme Court case Lycos/Pessers.
In this case, the claimant was the (former) owner of an online perfume shop who wanted to find out who the administrators were of a number of Facebook groups which discussed fraud by the web shop. Sometimes various personal details were mentioned, including the address details, mobile telephone number and number plate letters of the claimant.

The court deemed it sufficiently likely that the publication of such specific information (in particular in combination with the call to pay him a visit) must be considered to be unlawful and harmful towards the claimant. He therefore had a real interest in obtaining the requested information. The claimant had tried several other ways to obtain the information but without success. The court therefore deemed it likely that there was not a less drastic option to trace this information.

The District Court ruled:

‘[The claimant] has, without having this information, no possibility of forcing the responsible persons to stop their actions against him and claim compensation for the loss which he alleges to have suffered. This is counterbalanced by the limited interest of Facebook, as the neutral intermediary, to be able to offer its platform on which information of third parties can be spread in freedom and the interests of the administrators to express their opinion anonymously.’

The court subsequently concluded

“that the interest of the [Claimant] in the provision of the information outweighs the interest of Facebook and the administrator in the non-provision of such. All this leads to the conclusion that the conditions as set out under 4.1 are met.”

According to the court, Facebook was entitled to the view that it was only able to provide information available to it. A periodic penalty payment was nevertheless imposed on the obligation to provide the relevant information. Facebook was ordered to provide the name and address, IP address, date and time of registration and logins of all the users who had been administrators of the relevant Facebook group.

The claim to remove the personal details from the Facebook groups was rejected. The judge in interlocutory proceedings ruled on this:

“[The Claimant] has not disputed that (delivery) problems had occurred [at the perfume shop]. He only takes the view that he is not responsible for this as he sold [the perfume shop] to his father in 2008. This can however not be accepted outright now that there are indications that [the Claimant] was still involved in the management of the [perfume shop] after 2008. Facebook has submitted exhibits showing that [the claimant] still presented himself as owner of the [perfume shop] after 2008, including on his own LinkedIn profile. It can therefore not be established in these proceedings that the accusations do not have any basis. Whether the comments on Facebook group 3 are nevertheless unlawful towards the [claimant] can only be established in proceedings between the [Claimant] and the administrators of Facebook group 3.”

This ruling demonstrates that under certain circumstances it is straightforward to claim the surrender of name and address details of users on social media, provided the applicable criteria have been met.

By Joost Becker

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