Order in Kriégel case appears to treat social media firms like publishers

The naming of the boys convicted of murdering Ana Kriégel on social media is the latest in what is now a familiar phenomenon of widespread breaches by internet users of court orders prohibiting the identification of certain individuals.

Mr Justice Michael White's "trenchant warning" to those who try to identify the boys was, on this occasion, backed up with the more unusual move of ordering representatives of Facebook and Twitter to appear in court on Thursday.

The order is significant because it appears to treat the two social media companies in the same way that, for example, a radio station would be treated if a caller was to violate an anonymity order on air and it was unable to prevent this from being broadcast.

Silicon Valley’s social media giants have long maintained that they are not publishers, but technology companies.

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Facebook chief executive Mark Zuckerberg told a Senate hearing in Washington last year that he viewed Facebook "as a tech company, because the primary thing that we do is build technology and products". The definition helps his company avoid regulations that apply to publishers in various jurisdictions.

However, Mr Zuckerberg also conceded that while Facebook did not “produce” content, it was responsible for it.

In practice, social media companies have been obliged to accept responsibility on a string of content matters over the years, with Facebook hiring tens of thousands of human moderators to remove harmful and/or unlawful content.

On some occasions, this content has been seen to proliferate much faster than Facebook, Twitter and other platforms such as Google's YouTube have taken action or been capable of doing so.

Photo-matching technology

Facebook yesterday said it was using photo-matching technology to prevent posts identifying the two boys from being re-shared on its platform, its Messenger service or on Facebook-owned Instagram.

The social media firm said it had taken down content identifying Boy A and Boy B “as soon as we became aware” of it on Wednesday morning.

“We removed this content immediately for violating our community standards and local law,” a Facebook spokeswoman said.

A Twitter spokeswoman said it had “an established line of communication with An Garda Síochána” and were “in direct contact with them on this issue”.

An investigation in the UK into whether social media is putting the legal process at risk recently concluded that it “does not yet pose a serious threat to the criminal justice system”. But it also noted that some social media users were simply unaware of the restrictions that apply.

The view of the Director of Public Prosecutions (DPP), as stated by Brendan Grehan SC in court on Wednesday, that the platforms, and not merely the individuals who use them, have a responsibility in respect of court orders, is likely to be closely watched by legal systems outside the State.