Warby J dealt with issues (4) and (5) first, stating that if there are no arguable grounds of appeal it is hard to see to what proceedings C might attach her application for a reference to the CJEU:
(4) and (5) There was no merit in the argument that an earlier order of Master Kay allowing C to amend her Particulars of Claim included amending the name of the Defendant (from Facebook to Facebook UK), nor that C as a litigant in person should be given some leeway as to the matter of party identity.
In any event the Master was plainly correct in finding that C had failed to plead a reasonable case of responsibility for publication against Facebook UK or Google UK and, relying on Byrne v Deane, there was no realistic prospect that a court at trial would conclude that they were responsible for publication of the publications complained of.
C sought to argue that the reasoning of the CJEU in Google Spain could and should apply to defamation and privacy cases and that therefore the UK subsidiaries could be liable for the actions of the parent companies. Warby J found this to be entirely misconceived. The test in data protection cases such as Google Spain, based as it is on the EU-wide data protection framework is entirely different from the question of whether Facebook and/or Google are publishers for the purposes of the purely domestic causes of action of defamation and misuse of private information. Further, the CJEU in Google Spain did not find that subsidiaries and parent companies could be treated as a single unit for the purposes of data protection law or that the European subsidiary could be liable for the actions of the parent company, rather, that given its European operations, Google Inc was subject to the provisions of European data protection law.
C’s claim that Facebook and Google were “hybrid public authorities” for the purposes of direct application the Human Rights Act was also rejected. Neither company carries out public functions.
(1) C sought preliminary references on two points, Warby J rejected both:
(a) For an authoritative interpretation of the Data Protection Directive and Google Spain. This was rejected as the case did not give rise to any issue requiring such an interpretation, and in any event the position is quite clear
(b) for the CJEU to determine whether the Defendants are hybrid public authorities pursuant to Article 8 ECHR. This was rejected as misconceived in principle. The definition of “hybrid public authority” is a matter of domestic law, as is the interpretation of the ECHR (subject to the supervision of the ECtHR)
(2) and (3) The Judge having found as he did on issue (1), those issues fell away.