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How Facebook ruined my life

Byron James of 14 Gray’s Inn Square considers the perils and opportunities that Facebook presents in the field of Family Law.












Byron James of 14 Gray's Inn Square

I tell myself, as I contemplate any grim, rainy stroll to a bus stop, that taxis are something of a necessity in life. They also, for example, lack the neon boredom of the tube. Sitting in a taxi recently, as consequently I find myself often, I had the pleasure of being told by a major corporation that the world is becoming a much smaller place, because of them, because of technology. It is an interesting proposition: most have the ability to interact with another in a variety of instantaneous ways, sometimes accessible through the same handheld device. To what extent does this bring us closer? What qualitative worth does connecting with someone have, when it is done through the electronic media of the modern world? It is, however, a reality; people now conduct their intimacies, their socialising, through instant messaging. With such things comes a whole new culture, a whole new language, a whole new way of being with each other. How so often now that people are present but not present, busy fingers under the table at a dinner party is now just a fact of life, rather than something to be admonished. The saddest thing is what it replaces: how many kisses, or 'x's', does one receive a day, and how many actual kisses does one actually receive? Virtual reality is just that, it is not the equal of something real; it is lazy, distance inducing, and something that my generation, I am sure, will come to regret giving such importance. 

It is only in such a world that something like Facebook could ever exist. According to the website themselves, there are more than 500 million active users, 70% of which are outside the USA, spending over 700 billion minutes per month on the site, with 50% of the active users logging onto their profile in any given day. For those who know nothing of the site, if any such persons exist, enter Parkes QC sitting as a Deputy High Court Judge in Applause Store Productions & Ors v Raphael (2008) EWHC 1781 (QB) at paragraph 2:

"The case concerns the popular social networking site, Facebook, which was started at Harvard several years ago, spread to university networks on both sides of the  Atlantic, migrated from universities as its users graduated, and has now… become popular with older users in the media and television industries… [U]sers create 'profiles' for themselves, in which they may include as much personal information as they wish. Facebook enables them to adjust the privacy settings of their profile so that (for example) they may permit general access or restrict access to those whom they accept as 'friends'. The concept of a 'friend' has a special sense in Facebook, for it includes all those who make a request to be accepted as a friend and whose request is accepted by the user The 'friends' are listed on the user's profile. Profiles will contain a 'wall' on which those permitted access may post messages which can be read by those who have access to the profile, and will contain links to any 'groups' to which the user belongs. 'Groups' are Facebook pages which may be set up by users, notionally, it appears, as a resource which may be visited by any Facebook user interested in the 'group's' subject matter"

To understand the permeation through our society of Facebook, there are, albeit anecdotally, genuinely very few under thirties without a Facebook profile. There are those who use it for fun, for catching up, for reminding the world, including ex-partners that you are still alive and, more importantly, do still have a life. Others, well, use it as an outlet for whichever personality complex they might unabashedly have, the troubled, the insecure, with the desperate longing, pleading, of some 'status updates' being worrying and disturbing in equal measure; why anyone would think a public wall, akin to the village notice board, is an appropriate place to bare one's soul is beyond me. Personally, I hate Facebook: I lost a dear friend through it; such are the pitfalls and misunderstandings of the modern social world. 

One of the best things about family law, and let's face it, there are many, is that it constantly shifts with societal changes. Like so many other things that have permeated society before it, Facebook too becomes subsumed into the family law ether, this article intends to provide a look into the different ways in which Facebook could affect one's practice: whilst I, clearly, cannot offer advice on how not to lose friends through Facebook, I can perhaps suggest how to avoid losing a case…

Accessing information posted on Facebook
With the recent decision in Immerman v Immerman [2010] EWCA Civ 908, disclosure is a sensitive subject for family lawyers. E-disclosure is a development to which we should all be alive.

One route to recovering information disclosed on Facebook (see Applause Store Productions & Ors v Raphael (cited above) para 10) has been to obtain a Norwich Pharmacal Order against Facebook. Such an order comes from Norwich Pharmacal Co. v Customs and Exercise Commissioners [1974] AC 133 wherein the House of Lords found that if a third party had become involved in unlawful conduct it was under a duty to the injured person to give them full information, including disclosing the identity of the wrongdoer(s), naturally without undue costs to the third party. In Applause Store & Ors an order was made against Facebook for disclosure of the registration data provided by the user responsible for, in that case, creating a malicious profile on the site. This information included both email addresses and the IP addresses1 of all computers used to access Facebook by the owner of those addresses. The information provided by Facebook in Applause Store & Ors was described by the Judge as 'not so immediately accessible to the layman and used Pacific time (Facebook being based in California)'. However, solicitors for the applicant in that case compiled an 'activity log' for the defendant's IP address and its interactions with Facebook for a specified period of time. A word here about tracing an IP address to a postal address, something that was not an issue in Applause Store & Ors, as it was agreed to have originated from the relevant postal address. It is possible to trace a location through the specific numbers used, but this is complicated by the fact that IP addresses can be either fixed ('static') or variable ('dynamic'). It is usually possible to go against the ISP ('Internet Service Provider') to confirm the postal location of an IP address, this may require an application in itself to the court.

The activity log used in Applause Store & Ors gives a good example of how the information obtained from Facebook can be presented to the court. It contained columns setting out data relevant to the IP addresses interactions with Facebook over a specified period of time (this is 'for example' only, and not the actual format used in that case):


BST date and time

Script: page or section on Facebook being accessed

Scriptget: the activity being undertaken

Name of the person whose Facebook identity is being employed (not necessarily the same as the person's actual name)   

Examples:

 

 

10.00 on 24.06.10

 

 

 

Byron (having logged onto his profile) views his profile page

 

This will appear as 's.php'

 

 

Byron searches for someone called 'John Lennon'

 

This will appear as q=[first name] + [second name] so:

 

'q= John + Lennon'

 

 

Byron James is the user

 

'User: B James'

It is worth noting that this information was only really translatable into such a table with the assistance of a witness statement from a Mr. Max Kelly, chief security officer of Facebook Inc, who was initially available to give evidence by live link to explain more fully the coding used. However, when this was no longer possible, his statement was used to accumulate said table.

There is the potential for complicating factors such as if the wireless router is unsecured, making it harder to ascertain the exact users of the IP address. All that can be done in such circumstances is to eliminate those computers being used at the pinpointed postal address. This can be achieved by delivery up of those computers and a check on their hard drive, which should retain records of any such activity. This is only likely to be relevant in extreme cases and of course could result in the relevant computer not being found. It should remain as some comfort, however, that unsecured networks are not especially common.

This therefore all means that it is possible, relevant to a particular IP/email address, to secure the information posted onto Facebook by a particular user, including the pages viewed, such as the profiles of other people or pages/groups with particular political or moral perspectives (for example, a group called 'We all hate 'X' Local Authority') and the content and destination of any messages sent. Having secured the same, it is then possible to attribute these activities to an individual or group of individuals, and action taken as a result.    

There also remains the simple possibility of just printing off what one can glean from the screen. Helpfully, it is often the case that when a person posts something on a wall, on a group or on a status update, such is often accompanied by a picture of that person too. Of course, it always remains open for the alleged 'poster' to deny that the content was posted by them (rather, someone purporting to be them). If it became an issue, one would need to follow through the disclosure route set out above; notwithstanding that an admission might be forthcoming when the alleged 'poster' is presented, in cross examination or otherwise, with the possibility that it was posted by them. 

Facebook and divorce
Unlike Iago's plotting against Othello, some do 'make a life of jealously', 'follow the change of the moons with fresh suspicions', and as a result 'seek to prove their love a whore' with 'ocular proof'. Facebook offers an opportunity for people to find and flirt, perhaps especially with former loves. There is now being coined the concept of a 'Facebook divorce' whereby one becomes reconnected to a distant, possibly adolescent, and therefore impossibly deeply felt affaire de coeur, idealistically perceived through the telescope of time, ultimately resulting in the present spouse being ditched.

The impact of Facebook on divorce has been well chronicled in the media (http://www.telegraph.co.uk/technology/facebook/6857918/Facebook-fuelling-divorce-research-claims.html) with claims that one in five petitions now contain reference to Facebook in some way.

Having at one's disposal all the sent messages, and other forms of communication, including the flirty 'poke', and the frankly desperate 'super-poke', it is easy to see how the same could be used to prove, for example, adultery. Although it might be very difficult to establish the 'unlawful conduct' element necessary to ascertain the Norwich Pharmacal order to prove adultery, it might be easier in relation to the behavioural ground (depending on the nature of the behavior alleged) and, of course, is not the only way of obtaining information from Facebook.

Finally, the 'relationship status' displayed on a person's Facebook profile provides one of the cruelest ways to announce that a relationship is over: logging on to your profile to see a broken heart and the words 'Mr (not so) Right and Mrs (thought he was) Right have ended their relationship', it is worse when you see your partner's status as now 'single', or worse still when it is followed by 'Mr Right and Miss Much-Younger-Than-Me are now in a relationship'; that, notwithstanding the fact that several hundred people have found out about the relationship ending before you.

Facebook and ancillary relief
Ancillary relief lawyers are trained to be cynical, skeptical and disbelieving of everything. From the moment that a Form E is received, it is analysed against both the documentary evidence supplied and suspicions gleaned from information in the 'public' domain, the latter being often most useful in housing, valuation and expenditure terms. It is often the case that, much and often to the consternation of those involved, lawyerly know how and world experience are often held insufficient alone to obtain a direction or question at First Appointment; despite protestations that, if granted, the same might then proffer a thread, once pulled, which would unravel to reveal, say, a yacht or bank account, previously unknown.

Facebook offers the opportunity of a first step in the water before one dives in to search for something hitherto unknown.  What of the person who claims no holidays but has recent pictures on their profile showing them abroad; the person who claims to have no assets of worth, and is pictured driving an expensive car and/or boat; or a person who claims not to be cohabiting with anyone, only for Facebook to be proudly contradicting the same through an (ill judged) relationship status? Whilst these are not matters, necessarily, of substance which can be relied upon per se, they do provide an interesting lever at a First Appointment, so as to encourage a line of discovery through direction or questionnaire.     

Again, if one sought a Norwich Pharmacal order, one might have difficulties fulfilling the requisite element of unlawful conduct, save perhaps for cases of alleged fraud.

Facebook and the Family Law Act 1996
What is harder on a person than the end of a relationship? For some, one suspects, not a great deal. The disposable nature of relationships in the modern world, combined with fertile conditions for insecure attachment disorders to thrive, means that there are many who sit in anger, confused, at the end of something that has, perhaps inexplicably to them, come to an end. This is only one explanation (not a justification) for a type of harassment but it is especially relevant to the sort of problems that Facebook can cause.

When a relationship ends, one is faced with the difficult decision of whether to maintain that person as a 'friend' on Facebook. Even if one does, it does not stop them seeing certain aspects of your profile, possibly including your (new) relationship status, pictures of you with other people, or other such inflammatory things. It is possible to change one's privacy settings to prevent this, but, as many would complain, that would interfere with people you might want to be able to find you, locating you; it is also possible to block certain individual's profiles. However, that does not stop someone creating a profile under a different name, and even if a friend request by this new 'misnomer' is not made or accepted, it does not stop them seeing certain aspects of your profile unless you specifically 'block' them, and who has time to 'block' every person in the world one does not want to be friends with?

There are specific steps that can be taken to prevent Facebook interaction, as has been written by this author previously: specific drafting in non-molestation orders to include actions such as 'communication, by whatever means… including through Facebook'. Whilst the author is unaware of any reported cases in this country of breaches being proven following a Facebook communication, there is the recent case of a Florida man who, following a injunction against him akin to a non-molestation order, was jailed following a 'Friend Request' sent to his former wife, one suspects it was a breach of the injunction too far (http://www.nydailynews.com/news/national/2010/08/18/2010-08-18_florida_man_harry_bruder_arrested_for_facebook_friend_requesting_estranged_wife.html).

Of course, following the already discussed routes for disclosure, it makes the establishing of breaches, and indeed the need for specific drafting, that much easier to prove. One could well imagine certain Family Law Act 1996 cases where the disclosure from Facebook could be really quite revealing. Remember: what is disclosed is every interaction between the IP address and the Facebook account, leaving only the tie between an individual and the IP address to be established. It even shows the pages that one looks at when one logs on. Therefore, in seeking to establish proof of several messages sent by the alleged harasser, one might discover that said person logs on every day to Facebook and spends several hours looking at pictures of the harassed party.

This raises interesting issues as to what constitutes harassment. There is an Orwellian danger of persecuting people for looking at content on the internet; is this not just akin to penalising a thought crime? Whilst it does, perhaps, indicate a certain state of mind, for behaviour to be tantamount to harassment one must have a party who has been harassed; the difficulty comes when one discovers the harassment, and then has to determine, when considering either punishment or sanction, whether to take into account the period during which the harassed was unaware. Should this period be relevant to anything? On the other hand, how could it be ignored? Either way, disclosure from Facebook could provide at least the opportunity to have this debate through the disclosure mechanisms set out above.

Facebook and private law children cases
There is a world of positives to be drawn from the technology that allows parents to communicate with their children whilst they are far away. Of course, that is unless it is used a substitute when real contact is possible. These days, a trip abroad for a child can be interspersed with all manner of webcam, skype or other forms of instant message communication, not forgetting the good old fashioned telephone. Facebook has a role in this, allowing sight of photographs, as well as updates on progress and facilitating messaging.

Facebook and public law children cases
Public law children final hearings so often concern redemption, especially those in neglect and emotionally abusive cases. There is a distinctively purgatorial feeling to the court process which allegedly abusive parents are subject to. The question is often, in the end: has the journey undertaken by said parents rendered them in a position sufficient to feature significantly or at all in a final care plan (or indeed is one needed): has their wrong doing been sufficiently purged?

So often the answer is a delicately balanced one: the inadequate desperately trying to reform for the sake of their children. What greater motive could there be for them to do so? Except, such hearings, despite it feeling so, are clearly not actually about the adults and their 'journeys', rather, their purpose, as so often needs to be reinforced, is to safeguard sufficiently the welfare of the child(ren) concerned. It is then a harsh and difficult decision to knock back someone who has improved, fought against their demons, is fighting for their child(ren), by taking from them finally the one source of inspiration and motivation they had for change. Then again, it is only harsh and difficult in those cases where the desire and the improvement are genuine. Most have the desire but often lack sufficient strength to concoct that will into actuality. 

Facebook is a massive spider's web for such people. Even the cleverest person can disclose something on Facebook and forget that they are telling the world; the admissions, groups and friends that people maintain on Facebook are all revealing when one is weighing them in the redemptive scales. Sadly, people do declare that they are 'drinking again' on Facebook, do maintain contact through Facebook with those whom they should not and (an increasingly common phenomenon) join groups and discussion boards which are associated with a particular Local Authority or child proceedings generally, forgetting that social workers are often canny enough to be members of the same group.

Increasingly Facebook evidence is being used in these ways and, no doubt, as lawyers become more aware and comfortable with the information potentially available to them, more orders for disclosure will be sought in child abuse cases from Facebook Inc themselves.  

Facebook and adoption
When a child is adopted, the idea has traditionally been that severing links to the birth parents is necessary to maintain the security of the placement. However, the modern view is that the trauma placed upon adopted children when they discover later on in life, perhaps during the troubling times of adolescence, that they are something of a cuckoo, is best avoided. Now, 'life story work' is  completed, in part composed by the birth parents, and it is really quite common for there to be at least indirect contact and even direct contact between child and birth parents: knowing where you have come from appears an excellent way to avoid getting lost later in life. This is also reflected in the possibility, albeit even if rarely used, of a contact order under section 26 of the Adoption and Children Act 2002, following an adoption order.

The merit of maintaining some contact, some knowledge of the child's birth relations, may well have been accepted, but this comes at the same time as still valuing as crucial the security of the placement. Having referred to section 26 of the Adoption and Children Act 2002, one only need consider the safeguards contained in section 27 referable to the same. Any contact therefore is scrutinised to avoid any undermining of the adoptive parents' position. Given that Facebook provides an opportunity for birth parents to seek out 'their' children, and, as a result, communicate with them directly, this provides a worrying way, seemingly impossible to fight and guard against, in which a placement can be undermined. One can well imagine an adolescent, warring with their adoptive parents, thinking that solace could be sought through a birth parent. Is it always sufficient to be able to trust the birth parent to act appropriately? Unless the local authority or adoptive parents have access to the child's Facebook profile, how will they ever know either of the content or of the fact that such contact is taking place?

Whilst it appears impossible to regulate, there might be a solution for local authorities, but it is not foolproof. If it is thought that Facebook contact is taking place between a birth parent and adoptive child, then disclosure of the IP address activity undertaken at the respective properties could be revealing. The Norwich Pharmacal unlawful element here would be conduct specifically contradictory to the content of an adoption order (something to consider when drafting). Both the fact of the communication and specifics of the content would be available. However, how ever could one stop such contact in future? Would it really be beyond the ambit of the court, especially under the inherent jurisdiction, to order against Facebook a banning order for certain IP addresses to either not interact with Facebook per se or, technology permitting, from interacting with other profiles and/or IP addresses? The former would be something of a significant intrusion, but potentially justifiable if safeguarding a child's welfare. The loopholes in this include not being able to pin someone down to any given profile or place: a child might have a Facebook profile in a totally different name which they only ever access at school. In such circumstances, the content of any messages abound, it would be almost impossible to tie the individuals concerned to an IP address activity on Facebook. Furthermore, once a placement has been compromised in terms of locale and names, it remains forever so, and a determined birth parent can always find ways to interfere. This is a problem which I predict will become ever more pressing in future and I have little doubt that a case will be reported on the topic within the next few years.          

Facebook therefore is a phenomenon very much of our times; it provides family lawyers with opportunities and problems that could prove decisive in any given case. As with so many things in life, the readiness is all.
_______________________

1 For those unaware, an IP ('Internet Protocol') address is a number assigned to a device which participates in a computer network, such as the internet. In a wireless router scenario, a computer, or several, can use the router to connect to the internet and the router then employs an IP address.