Sabados v Facebook Ireland

C was in a long-term romantic relationship with a childhood friend called Mirza Krupalija (“M”). C and M were in a relationship from 2010 until M’s sudden and unexpected death in March 2016. M lived in Sarajevo while C lived in London, so much of the relationship was conducted long distance, mainly by Facebook Messenger and Skype. M used Facebook heavily and posted many photographs and other creative media. After M’s death C was treated by M’s family as M’s wife and C was allowed to make all the decisions about M’s funeral arrangements.

Around six months after M died, Facebook received and acceded to a request from a person unknown to delete M’s account. All of the material posted by him was deleted. Facebook did not say who requested the deletion, save that it could only be made by an executor or immediate family member of the deceased.  C argued that the deleted information contained personal data belonging to her because among the material on the profile were photographs of her with M, and other personal data. C also alleged that whoever requested the deletion may have gained access to her personal data and private communications with M, thereby committing a breach of confidence and/or misuse of private information.  C submitted that it was likely that the information given by that person to Facebook was untrue.

C sought an order against D to disclose who made the request for the deletion of M’s account.

1.  Does the Court have jurisdiction?

2.  Should Norwich Pharmacal relief be granted?

1.  The Court does have jurisdiction.

The Court had jurisdiction under Article 7(2) of the Brussels Recast Regulation to make the order on the basis that England is the place where the harmful event occurred. While the wrong was probably done in the Republic of Ireland, by way of Facebook processing the deletion request, the sole damage caused and suffered by C, of grave distress, was in England.

2.  Norwich Pharmacal relief should be granted.

There are three conditions that must be satisfied in order for the court to exercise its power to grant Norwich Pharmacal relief:

• First, a wrong must have been carried out or arguably carried out by an ultimate wrongdoer. This was satisfied. There was a good arguable case that an individual posing as a family member of M contacted Facebook, which resulted in the irretrievable destruction of the profile and allowing such an action to be brought. In the circumstances a cause of action could arise under the Data Protection Act 1998, in misuse of private information and breach of confidence (and, conceivably, there could in these circumstances also be a Wilkinson v Downton claim).

• Second, there must be the need for an order to enable action to be brought against the ultimate wrongdoer. C would not have sufficient information to identify the individual and formulate her course of action unless an order was made against D, and so this condition was met.

• Third, the person against whom the order must be mixed up in the alleged wrongdoing so as to have facilitated it, and be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued. D was unequivocally mixed up in the alleged wrongdoing and not a mere witness. D’s procedures in relation to the deletion of deceased individuals’ Facebook profiles included capturing details of the requestor and reviewing official documentation. Although Facebook expressed some doubt as to whether they still had this information, such doubt was no reason not to make an order if the other conditions were satisfied.

Even when these three conditions are satisfied, the court retains a discretion. Having regard to the non-exhaustive list of factors identified by Lord Kerr in Rugby Football Union v Viagogo [2012] UKSC 55 at [17], Norwich Pharmacal relief should be granted. The essential purpose of the remedy is to do justice, and unless the court made the order sought C would have no remedy whatever.

This decision founds jurisdiction under the Brussels Recast Regulation 1215/2012 on the basis that the damage occurred in England, despite the request likely being sent from outside England and the request being processed in Ireland. HHJ Parkes QC cited Tugendhat J’s reasoning in Vidal-Hall v Google [2014] EWHC 13 (QB) in support of this (and the Court of Appeal’s decision [2015] EWCA Civ 11).