Facebook evidence in protection claims

19 October 2017

Facebook evidence is increasingly relevant in protection claims, often where it is used as evidence of an individual’s political opinion. There are some countries where it is particularly risky to have expressed opposition views on facebook, such as Iran, as found in the country guidance case of AB & Others (internet activity – state of evidence) Iran [2015] UKUT 00257 (IAC) (see especially paras 457, 460 – 464). It can also be a medium through which threats are made, as I have seen in cases from Iraq, Lebanon and Libya.

This blog looks at ways to use this evidence effectively in a tribunal where many judges do not themselves use facebook and may be unaware of the nuances such as whether posts are public and whether it is possible to retrieve certain posts. It should be emphasised that facebook is just one social media network – there are many others and some countries impose internet/mobile phone network blackouts to stop use of many other social media sites and messaging services such as Twitter, WhatsApp. I focus on facebook but many of the suggestions would apply to other services too.

What is facebook?

Facebook was originally a website and is now also an application for mobile phones and tablets. To use the site, individuals sign up for a facebook profile on which they can list biographical details and location, and share pictures, text updates and articles through ‘posts.’ Different facebook users can be ‘friends’ which would normally allow them to see more personal content on their friends’ pages. Friends can also ‘post’ on a friend’s page, for example, to say happy birthday.

How do people communicate on facebook?

There are a variety of ways through which people can communicate on facebook, including:

• On their own profile – posting text, sharing articles (and commenting on them), posting or sharing pictures and videos and using “facebook live” to broadcast where they are or what they are doing in real time (such as attending a protest);
• On a public page (such as a page belonging to a political group) or group – by posting or commenting on other’s posts. Here’s a handy guide to what pages and groups are https://www.facebook.com/notes/facebook/facebook-tips-whats-the-difference-between-a-facebook-page-and-group/324706977130/;
• On another person’s profile, by posting or commenting (if someone has posted on another person’s profile you will see their name, then an arrow, then the name of the person whose profile it is; and
• Through facebook messenger, a private messaging service, which can be with just one other person or a group and does not have to be with someone who can view your profile or be ‘friends’ with you (in your network).

It is important to be aware of the differences as they affect what the facebook evidence can show and what you might need to explain it.

Key tips for effectiveness:

Fully exhibit facebook evidence to a witness statement

This is vital to make sure it is crystal clear to the judge what they are looking at – leaving it to examination in chief for the client to explain who or what is in a photo or post, risks it not being accurately recorded if the judge is unfamiliar with how facebook works or because it’s difficult for the judge to see what the client is pointing out, especially if it’s people whose names the judge does not have (this also takes up time in the hearing which normally annoys the tribunal!).

Posts from the current year will simply show as “15 July” rather than “15 July 2017.” This is not immediately obvious so should be explained in a witness statement or by the representative.

Good translations

These are as always important to ensure the evidence is given due weight and what is being said is clear. Make sure everything possible is translated and submitted as early as possible. Go through translations with the client to make sure they are accurate.

Colour copies

Colour copies of facebook evidence normally assist, such as where the colours of a political party are prominent or where there are photographs of the client at political events. It also makes it easier to see small, light grey icons which indicate the status of a post (public, friends only etc).

Some facebook evidence may require further supporting evidence to explain it

For example, your client might have a symbol of a political party as their ‘cover photo’. Normally, further country evidence will be required to explain what this is. The same goes for photographs of your client with prominent opposition politicians. Your client could explain who they are in a witness statement and you could provide photographs which associate them with their name, eg, from the party’s website or facebook page.

(NB all facebook users’ latest cover photo is mandatorily public, if they have one, although the privacy settings can be changed on previous cover photos).

Make clear who can see the posts

What exposure a facebook post may have can become a crucial and difficult issues for Appellants (see the comments in EZ v The Secretary of State for the Home Department [2017] CSOH 29). If your client is posting on their own profile page, they may have very high privacy settings which mean only their own network can see it. This may not eliminate risk, but it would be less risky than a public post. It’s useful to include facebook’s explanation of what the different icons on a post mean – where you see a globe that means anyone, including those who do not even have their own facebook accounts, can see it. The padlock icon, in contrast, indicates this is a post that only the poster can see. Remember that settings on posts can be changed: https://www.facebook.com/help/211513702214269.

Remember also that there is evidence that some states would force an individual to log into their profile (eg, Iran).

If your client is liking or commenting on a post on a page or group (or another person’s profile page), who can see that like or comment depends on the settings on that post made by the original poster, and that can change, for example from that person’s friends only to public. That is not going to be within your client’s control (see https://www.facebook.com/about/basics/manage-your-privacy/my-likes-and-comments).

Try to show posts going back as far as possible

Where you see a client expressing political opinions dating back years on their profile page, it adds credence to their claim to be a genuine/active supporter of that group and can for example show such activity before a need for the protection claim arose, such as when the client had other forms of leave to remain in the UK (eg, as a spouse, student). While it may be more difficult for a client to find old comments or posts they have made on public pages or groups, it could be really worth the time. Also look out for people responding negatively to your client’s views in their own comments, which can be evidence of general risk or past threats. The same goes for facebook messenger – old messages can help show longevity of political involvement, relationships or provide a contemporaneous record of something your client says happened.

Be aware of how posts link to an individual

You may have a client who is involved in a political group, and their photograph appears prominently on that group’s facebook page, but without their name. This certainly does not mean there is no risk that person has not been identified by the authorities as they may be heavily monitoring that page, especially if it is a well-known organization, but your case will be strengthened if you can find additional evidence, from facebook or elsewhere on the internet, that links your client’s face to his name or you can show that he has been ‘tagged’ in the photo: https://www.facebook.com/help/124970597582337/.

Be ready to explain why posts may be missing

A client may have been commenting on posts by supporters of, for example, ISIS, criticising their actions, and then have been threatened in response. However, this is the kind of post that will be removed by facebook, along with its comments. You may therefore wish to include evidence about facebook’s ‘community standards’ to show why your client cannot produce that evidence: https://www.facebook.com/communitystandard.

Other times, posts and comments by your client may have disappeared simply because that page or group was shut down (either because of the community standards or the organization moved on or ceased activities) – the Tribunal may need to be made aware that is not within your client’s control.

Gather country evidence to support why this facebook activity places your client at risk

Normally, claims where a client’s activity on facebook is exposing them to risk involves risk from the state. Country evidence will usefully show:

• How states monitor facebook activity and their overall internet surveillance capacity;
• How states rely on facebook to arrest, detain and/or prosecute activists, political opponents, journalists etc.

International NGOs such as Human Rights Watch and Article 19, as well as various media outlets, have published reports of state crackdowns on the expression of political opposition on facebook have covered countries including Algeria, Azerbaijan, Bangladesh, China, Egypt, Kyrgyzstan, Lebanon, Pakistan, Thailand, Vietnam and Zimbabwe. As above, the problems with facebook in Iran were covered AB, cited above and the DRC state infiltration of political opponent’s facebook communication was mentioned briefly in BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 00293 (IAC) (at para 22).

Possible problems and how to anticipate/resolve them with evidence

1. Tribunal doesn’t understand what it is looking at or its relevance

Checklist:

• Facebook’s own explanations of how posts, privacy etc work, as applies to your evidence (see links above);
• Good certified translations;
• Objective evidence is provided to corroborate evidence (eg, evidence confirming a picture of a flag is a separatist party’s flag);
• All relevant posts going back as far as possible have been included;
• Evidence/case law about authorities monitoring facebook in your client’s home country and using it to persecute activists etc; and
• Client’s witness statement explains what is in each photo, post etc (unless completely self-explanatory).

2. Home Office queries who could have seen the posts

Checklist:

• Check what privacy settings are on posts and you have facebook explanation of what they mean;
• Check whether photos of your client not on his/her profile are tagged with his/her name and if not double check whether your client has similar material on his profile; and
• Provide country evidence/caselaw about whether that country monitors facebook or checks it on return.

3. Home Office queries where past posts/messages have gone

Checklist:

• Client’s witness statement should explain where things were posted in as much detail as possible and if the client his/herself deleted them and if so why;
• Evidence from facebook to explain the difference between your client’s profile and a page, group etc, the latter not being under your client’s control; and
• Facebook community standards showing that posts inciting violence will be deleted.

As a final note, it might be worth you checking with your clients how they are using facebook. People can say silly things on facebook that are not true but then could be used to devastating effect on their credibility (this may be particularly a risk with unaccompanied asylum-seeking children who may be seeking to conceal from their teenage peers that they do not have immigration status in the UK to avoid bullying). Make sure they do no post publicly (the Home Office can and does check facebook profiles) and that they understand the possible consequences of joking around or trying to cover up their uncertain immigration status to friends in the UK, however understandable this may be.

With thanks to Mikhil Karnik for suggesting links to country evidence.

Natalie Wilkins is a barrister at Garden Court North Chambers.