Neutral Citation No:  NICA 48
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
(a) Two comments which referred to J20's children on the Irish Blessings page amounted to the tort of misuse of J20's private information;
(b) The words, "That's a tout so it is. Said the fish" on the Belfast Banter page and superimposed on a photograph of J20 holding a fish in a public place also amounted to the tort of misuse of J20's private information.
(i) "My daughter has three children to this scum woman beating snake who can't string two words together, he can only mumble. He deleted his children off his fb page because their names are Catholics. He must be full of Diazepam cause he is the biggest coward I have had the misfortune to meet. Love the page by the way."
Post by X dated 12 September 2013.
(ii) "He has Catholic children who he doesn't bother with. Probably because they are Fenians."
This was posted on 12 September 2013 by Y
"That's a tout so it is. Said the fish."
We confirm we are instructed by J20 that a photograph and comments had been posted on Irish Blessings www.Facebook.com/Irishblessings page dated 11 September 2013 stating that another Loyalist bigot is exposed. Comments go on to call 'wee J20 organises more loyalist parades and protests than you can shake your fag at, he is as bitter as the day is long #sectarianscumbag'.
Thirteen offensive sectarian comments have been posted and J20 has advised us that he is in genuine fear of his life. There is no question that this article puts our client's life and physical well-being at risk. Please confirm you will ensure that the offending material is taken down immediately. If the offending material is not taken down by 5.00 pm on 14 September 2013 we have instructions to make an application to the court for an emergency injunction to force same and to fix you with a costs of the same."
The correspondence is described as being "extremely urgent". There was no response from Facebook.
"… That the respondent must remove forthwith from the 'Irish Blessings' webpage of his website (having the URL:
https://www.Facebook.com/Irishblessings/page) the 'Ardoyne Under Siege' webpage (https://www.Facebook.com/#/pages/ardoyne-underseige/505163022903072?fref=ts at the Belfast Banter webpage:
(https:///www.Facebook.com#/pages/belfast-banter/207797202729326) references to pictures of the applicant, to include all entries and comments on same."
" Firstly, neither the plaintiff nor his friends can be criticised in relation to the online complaints. They do not provide the opportunity to set out a legal basis for complaint. The automated system involves the complainant clicking onto pre-prepared boxes for the reporting of abuse. Someone such as the plaintiff or his friends cannot be expected to categorise the legal nature of their complaints and indeed the automated system does not facilitate this. Having received the complaints it seems to me that the onus then shifts to the defendant to assess the alleged abusive content. Secondly, the solicitors' letter of 13 September refers to the Irish Blessings website (which the defendant was able to identify) and makes express reference to the plaintiff being described as a loyalist bigot, as bitter as the day is long, sectarian scumbag. The letter also refers to 13 offensive and sectarian comments which had been posted on the site and makes express reference to the fact that the plaintiff is in fear of his life.
 I accept that the letter of 13 September could and should have been more specific in identifying the precise legal basis of the plaintiff's complaint. However, in my view the defendant should be expected to know the relevant law in relation to such matters as defamation, harassment and breach of private information when a complaint is drawn to its attention. It cannot simply turn a blind eye to complaints and say that a complainant has failed to properly categorise the legal basis of that complaint. At a minimum the defendant should consider the material in respect of which there has been a complaint and remove any unlawful content. In this case the unlawful content which I have found is apparent on the face of the material. This is not a case where the defendant required further information to come to a conclusion on the lawfulness of the material posted. The unlawfulness is apparent in the words themselves. …. The reference to the religion of the plaintiff's children and to him being referred to as a tout were unlawful and could not be justified. In the circumstances I have come to the conclusion that the defendant did have actual knowledge of the unlawful nature of the information in question. In short the defendant had sufficient facts and circumstances before it to make it apparent that the publication of the information which I have identified was private."
"(a) The Human Rights Act. The Human Rights Act 1998 requires the values enshrined in the European Convention on Human Rights be taken into account. The foundation of the jurisdiction to restrain publicity is now derived from Convention rights under the European Convention on Human Rights see In Re S (A Child)  1 AC 593 at paragraph (23). The relevant values in the actions before me are expressed in Article 2, 3, 8 and 10 of the Convention. The Convention values are as much applicable in disputes between individuals or between an individual and a non-Government body such as a newspaper, as they are in disputes between individuals and a public authority, see paragraph (9) of (Mosley v Newsgroup Newspapers Ltd).
(b) Expectation of privacy. 'The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence', see paragraph (7) of Mosley v Newsgroup Newspapers Ltd. The question as to whether there is a reasonable expectation of privacy is an objective question and a question of fact. The reasonable expectation is that of the person who is affected by the publicity. The question was defined by Lord Hope in Campbell v MGN  UKHL 22 at paragraph  as follows:
'The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity'.
The question whether there is a reasonable expectation of privacy 'is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher' see Murray v Express Newspapers  EWCA Civ 446 at paragraph ."
Greer LJ in Byrne v Deane said at page 830:
"In my judgment the two proprietors of this establishment by allowing the defamatory statement, if it be defamatory, to rest upon their wall and not to remove it, with the knowledge that they must have had that by not removing it it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of it."
"Even if [Google Inc] should properly be seen as a facilitator, the mere provider of a gigantic notice board on which others publish defamatory material, in my judgment it must also at least be arguable that at some point after notification [Google Inc] became liable for continued publication of the material complained of on the Byrne v Deane principle of consent or acquiescence."
Relevant Statutory Provisions
"1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements."
"Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where—
(a) The service provider—
(i) Does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
(ii) Upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and
(b) The recipient of the service was not acting under the authority or the control of the service provider."
"In determining whether the service provider has actual knowledge, a court shall take into account all matters which appear to it in the particular circumstances to be relevant, and among other things, have regard to:
(a) whether the service provider has provided a notice through a means of contact made available in accordance with Regulation 6(1)(c); and
(b) the extent of which any notice includes:
(i) The full name and address of the sender of the notice.
(ii) The details of the location and the information.
(iii) The details of the unlawful nature of the activity or information it established."
"Having considered these Regulations and the well-established line of authority in relation to the liability of ISSPs for publication by third parties in the law of liable I conclude that there can be no liability in this case against the defendant prior to it being put in actual notice of the matters giving rise to a cause of action. There is no obligation to proactively monitor sites."
"The 2002 Regulations clearly envisage a scheme which provides an easily accessible notice and take down procedure so that a complainant can utilise a Regulation 22 provision to establish actual knowledge and thereby establish liability against the ISSP if there is a failure to take down an unlawful posting. The defendant employs such a mechanism. In the course of the hearing I was referred to Facebook Community Standards which sets out the type of expression which is acceptable to it and what type of contact may be reported and removed. The reporting mechanism to which I have referred permits members of the public to report a view which violates these standards which are then reviewed by Facebook's Community Operations Team who can remove or delete the material if it violates policy. In this way it says it complies with the requirements of Regulation 19 of the E-Commerce Directive."
The Facebook Appeal
(a) The two postings referred to the religion of J20's two children. The action was brought by J20 not by the children or by J20 as their next friend. J20 did not have a reasonable expectation of privacy in respect of the religion of the children.
(b) Further, the trial judge made no finding that any of the children referred to in the two postings were minors. The evidence showed that at least two of the children were adults, as the plaintiff complained he had been unable to attend their weddings. No evidence was presented to the court that any of the children were minors at the time of these postings.
(c) Further the two postings were in response to a photograph of the plaintiff and a caption in respect of which the trial judge held that the plaintiff had no reasonable expectation of privacy. This posed photograph of the plaintiff taken in a public place, engaged in an act of public protest, was provocative and would inevitably attract strong comment. While the trial judge quite correctly held that the plaintiff did not have a reasonable expectation of privacy in respect of the photograph or its caption, the trial judge should also have concluded that this fatally undermined any claim by J20 to a reasonable expectation of privacy in respect of the comments posted in response to that photograph.
(d) The trial judge wrongly relied upon King v Sunday Newspapers Limited  NICA 8 and essentially read across from that case to find a reasonable expectation of the privacy although there were clear distinctions between that case and this. In the case of King, there were 29 articles published over a seven year period in the Sunday World newspaper alleging that King had been involved in serious criminal activity and had a lifestyle funded by his criminal activities. One of the articles referred to the fact that the plaintiff's baby daughter was christened in a Catholic church in a County Down village and identified the parish of the church. The trial judge Weatherup J was satisfied there had been threats against the appellant for a number of years from Loyalist paramilitaries and dissident Republicans and that accordingly there was a real and immediate risk to the appellant, that the risk was objectively verified, and that it was present and continuing. The judge concluded on that basis that the plaintiff's Article 8 rights were engaged. There was a reasonable expectation of privacy for the child's details including its identification, its religion and details of the christening. There was no justification for publishing the information about the child's identity, its religion or details about the christening and an injunction was granted accordingly. The two critical features which distinguish King were the risk of harm and the identification of the infant child. In the present case the two postings were by the children's family members and thus were only published to those who sought to access and read the comments on that particular photograph and the children themselves were not infants and were not identified. There was no evidence of any risk of harm.
(e) In respect of the posting of the photograph of the plaintiff with the words superimposed on the photograph "That's a tout so it is. Said the fish.", Facebook says the judge erred in law in concluding the plaintiff had reasonable expectation of privacy and that Facebook was liable for the tort of private information in respect of the words superimposed on the photograph. It says that the judge failed to take into account that there was no serious assertion that the plaintiff was an informer, rather that the use of the word tout was a play on words with trout. Further, there was no evidence that there was any assertion being made that J20 was an informer or that such an assertion might be taken seriously. The trial judge also failed to give any weight to the complaint of J20 that the words were "annoying or distasteful humour".
(f) Finally, the judge relied on AB v Sunday Newspapers in concluding that referring to the J20 as a "tout" constituted misuse of private information. The two cases were very different and clearly distinguishable. In particular there was no evidence of any threat or harm suffered by J20 or anyone else as a result of the publication of the photograph with the words superimposed.
The Respondent's submissions
(a) The appellant took no issue with the learned trial judge's exposition of the law relating to misuse of private information. The criticism is essentially related to findings of fact in an area which is fact sensitive. The findings of fact made by the judge should not be interfered with by an appellate court.
(b) There is no proposition of law which would support the contention that an Article 8 intrusion could not occur in relation to a posting made by a family member, even a grandmother. Similarly there is no support for the proposition that the protection through Article 8 of the relationship between parent and child can only exist or be protected by the child as a minor. The respondent relied in particular on the passage in King v Sunday Newspapers Ltd  NICA 8 where Girvan LJ said that an individual normally has a reasonable expectation of privacy in respect of information relating to his private, intimate and family relationships which are multifaceted.
(c) The respondent contended that the learned trial judge had applied the law to the facts of the case in the following passage at paragraph  of his judgement:"In this case the plaintiff said that he was "disgusted" by the reference to his children. He said that this has had an impact on his relationship with them and he was unable to attend two of their weddings. It may well be that the background to the history of his relationship with these children is complicated and I note that the postings concerning the children seem to come from the family of the mother of the children. Nonetheless, I have come to the clear view that in respect of the religion of his children he did have a reasonable expectation of privacy."
(d) In relation to the posting of the respondent holding a fish with the caption "That's a tout so it is said the fish" it is fanciful to suggest that the posting meant anything other than that the respondent is/was an informer. The respondent relies on AB v Sunday Newspapers  NICA 58 for the proposition that an informer has a reasonable expectation that his confidential relationship will not be disclosed. That applies whether or not the allegation is correct.
(e) At paragraph  of his judgement the plaintiff referred to the online complaints system. In the following paragraph he accepted that the letter of 13 September 2013 could have been more specific in identifying the precise legal basis of the complaint. He considered, however, that the appellant did not require further information to come to a conclusion on the lawfulness of the material posted. The reference to the religion of the respondent's children and him being a "tout" were unlawful and could not be justified. These were postings which constituted evidence of an unlawful intrusion into Article 8 rights.
(f) It is accepted that publication is a necessary ingredient of the tort of misuse of private information. That was acknowledged by the learned trial judge. Paragraph 74 and 75 of his judgement supports the view that publication was concurrent with the receipt of the letter of 13 September 2013. Although that was an affidavit on behalf of Facebook about the receipt of the letter there was no explanation as to why the appellant did not regard the items as a violation of its terms of service.
(g) If the preceding paragraph is wrong the appellant acquired knowledge on 25 September 2013 with service of the injunction papers followed by the Order on 27 September 2013. The delay in removing the sites until 9 October 2013 was excessive.
(h) The award of damages was well within the area of discretionary judgement available to the learned trial judge.
Misuse of private information
"… a person's identity and appearance are unlikely to be capable of misuse in the context of this tort, since, in the vast majority of cases, these are obvious to and are relatively as ascertainable by the public at large."