Facebook and Misuse in Northern Ireland: Round 2

January 11th, 2017

In amongst the exciting political developments in Northern Ireland of the last few days have been a positive parade of misuse of private information cases against online social media companies. I posted about the very interesting (yes it was) judgment of the Court of Appeal in CG v Facebook the other day, and now, hot on its heels, comes another: J20 v Facebook Ireland Ltd [2016] NIQB 98. This one is a less wide-ranging – and is a pure misuse of private information case rather than also having data protection points – but contains some further useful indications as to how the courts are approaching misuse in an e-Commerce world.

Colton J set out at [5]-[7] a series of Facebook posts made between 11-16 September 2013 which identified J20 and made comments about him, his political views (including as to the flying of the Union flag) his use of medication, his sexual orientation, his treatment of women and his relationship with his children (identified as Catholic). None of these comments were, to put it mildly, complimentary. The Court found that however unpleasant they were, they were not a course of conduct amounting to harassment: at [17].

At [18]-[34], Colton J engaged in quite a detailed consideration of what in the posts amounted to private information. A picture of J20 with a Union flag flying was held not be private, as it was likely to have been taken in the context of J20’s participation in the flag-flying protests (as a result of which J20 received a criminal conviction), and nor (it seem) was a picture of him holding a fish in a car park, which compared to the recent allegations about Donald Trump’s proclivities is a fairly mild form of self-entertainment. His name, age and address had entered the public domain as a result of his recent conviction and so were not private. Nor were his identity and appearance properly private. However, the reference to the religion of his children – who could be identified through him and the purported posting of their mother – was a matter in which he had a reasonable expectation of privacy (and not just the childrens’ expectation). Publication of their religion was not a matter which could be justified. At [35]-[42], Colton J also considered whether the reference to J20 being a “tout” (namely, an informant) was private information, noting the obvious impact of such allegations in Northern Ireland. He accepted that it was so protected and should not have been published.

(Regrettably, the judgment does not explain whether or not the fish in the picture – to which the ‘tout’ caption was attached – was a trout or not. A potential vein of Malapropisms was left unexplored as a result, which might have knocked J20 off his perch. No more fish jokes though, lest it give readers a haddock.)

The judgment then considered whether not Facebook had the benefit of the regulation 19 defence in the e-Commerce Regulations, covering quite similar ground to that set out in CG. In this case, J20 had used Facebook’s reporting mechanism but said he got no reply. His solicitors wrote an urgent letter requesting take-down on 13 September. They got no response and obtained an urgent ex parte injunction on 27 September. In accordance with the Order, the posts were taken down by 9 October. The judge noted that the online reporting tool does not allow a user to specify a ground of legal complaint. As in CG, the judge thought that the legal letter was insufficiently clear on the legal complaint being made, but that Facebook could readily have worked out the point of the complaint from the letter with the pages in issue. Colton J held that Facebook had actual knowledge of the unlawful posts: at [75].

He went on to hold that Facebook had not acted expeditiously; indeed it appeared to have taken a positive decision that nothing in the material violated its terms of use. As a result, it was liable for misuse: at [77]-[78].

The relatively low level of damages in misuse of private information cases was maintained at [96]-[97], where Colton J awarded £3,000 in the absence of physical or psychiatric injury.

While such claims remain rare in England, the spate of case law in Northern Ireland will be invaluable, and shows a real unwillingness to exempt information society services from the rigours of dealing with unlawful posts on their social media platforms. This fish will swim and swim.

Christopher Knight

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