Full case report

CG v Facebook Ireland Ltd

Reference [2015] NIQB 11
Court High Court of Northern Ireland, Queen's Bench Division

Judge Stephens J

Date of Judgment 20 Feb 2015


Summary

Privacy – harassment – online publication – Facebook – publicising sex offender’s identity and whereabouts – injunction – take-down


Facts

In 2007 CG was convicted of a number of sex offences. Mr McCloskey, (D2) ran a Facebook page called “Keeping our Kids Safe from Predators 2” on which were posted his own comments and the comments of others about CG amongst others. CG sued D1 (Facebook Ireland Ltd) and D2 in relation to a series of these inflammatory posts, alleging that they constituted: harassment, a misuse of private information, and a breach of Articles 2, 3 and 8 ECHR. CG also brought a claim against D1 only in relation to a similar page run by RS, the father of one of the victims of CG’s offences (CG chose not to bring a claim against RS).

By the time the case came before the court, the posts complained of by CG had been removed by the Ds.

There had been an earlier judgment against both defendants in a case brought by a different convicted sex offender, in relation to a page entitled “Keeping Our Kids Safe from Predators” (XY v Facebook Ireland Ltd [2012] NIQB 96). In that case the Northern Irish High Court had granted an interim injunction ordering the removal of the whole Facebook page.


Issue

(1) Did the posts constitute:

(a) Harassment

(b) A misuse of private information?

(2) Should the court award an injunction against either or both Ds? If so in what form?

(3) Should the court award damages against either or both Ds? If so, in what sum?


Held

(1) It was clear from the Public Protection Arrangements in Northern Ireland (the system for the management of sex offenders, known as the PPANI), that the public interest lay in preventing inappropriate disclosure of information. Public availability of such information prevents the rehabilitation of offenders and increases rather than reducing the risk of further harm to the public. In Northern Ireland there is a real risk from paramilitaries to sex offenders. There was evidence that CG had faced threats as a result of the posts, feared for his family and had been stopped from seeing his disabled son. However, no specific findings were made in relation to the human rights claims, as counsel for CG in closing submitted that the case was properly categorised as misuse of private information against D1 and harassment against D2.

(a) D2 had set and operated the Facebook page in order to vilify sex offenders such as CG, drive them from their homes and expose them to the risk of serious harm, including by encouraging harassment by others. It constituted a course of conduct which was oppressive and unreasonable. It amounted to harassment and the Ds knew or ought to have known that it did so.

(b) The Data Protection Act 1998 provides as “useful touchstone” as to what information is private. CG had a reasonable expectation of privacy in relation to his sexual life and the commission of any offences by him (all sensitive personal data). The combination of information was relevant – there was a great deal of information about CG including photographs, details about where he lived, his family and his criminal convictions. CGs rights had to be balanced against Ds Article 10 rights, but the balance came down firmly in favour of CG. Given the PPANI D2 could not reasonably have believed publication was in the public interest. He misused CG’s private information.

D1 misused the private information by failing to delete it. It would have be apparent to D1 that the material was unlawful because of (i) the previous XY litigation which put D1 on notice, (ii) the letters sent by CG, (iii) the combination of these with some elementary investigation of the page. It was obvious that the material was unlawful, D1 does not need this spelt out. It was not necessary for CG to provide the URL of each post. The E-Commerce Directive is not prescriptive as to how notice is to be provided, it is clear that all the circumstances must be taken into account in deciding whether an ISP has actual knowledge of the unlawfulness of the material. A defence under the E-Commerce Directive therefore failed.

(2) An injunction against D2 to prevent them from harassing him, by publication on Facebook or otherwise, was granted. A mandatory injunction ordering D1 to take down the whole “Keeping our Kids Safe from Predators 2” page, not just those posts relating to CG was granted. The page was doing damage to all the individuals named on it and was clearly unlawful, it was in the public interest to order that the page be taken down.

(3) A total of £20,000 in damages was awarded, £15,000 against both Ds, with an additional £5,000 against D1 in relation to the page set up by RS.

The judge also discussed data protection, but as he did not have sufficient evidence before him to decide whether D1 was a data controller within the jurisdiction, and as there was not pleaded data protection case against D2, he did not make findings in this regard.


Comment

Of particular interest will be the court’s attitude to Facebook as a defendant. Stephens J had no difficulty finding Facebook to be a publisher once it had knowledge of the offending posts, and did not accept the argument that a claimant has to provide the URL of each individual post or comment before Facebook could investigate. This approach, which appears practical and proportionate, would be of great assistance to those who find themselves endlessly seeking the take-down of material that simply re-appears on a new page or site as soon as it is removed. Finding that the previous litigation put Facebook on sufficient notice of itself is a bold step. However, it may raise questions of whether this constitutes an general monitoring obligation, not permitted under the E-Commerce Directive. It will be interesting to see what approach courts take in other cases where a repeated publication is in play, such as Mosley v Google.

Another point of interest is the court’s apparent equation of sensitive personal data and information in which one has a reasonable expectation of privacy. Whilst there will clearly be much overlap – private health or sexual information will undoubtedly constitute both private information and sensitive personal data – it is fairly easy to think of examples of sensitive personal data in which one would not have a reasonable expectation of privacy. For example: the political views of a party leader, the fact of a recent marriage and the names of the spouses or a conviction for murder at the Old Bailey today.


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