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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> CG v Facebook Ireland Ltd & Anor [2015] NIQB 11 (20 February 2015)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2015/11.html
Cite as: [2015] NIQB 11
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| Neutral Citation No. [2015] NIQB 11 | Ref: | STE9491 |
| Judgment: approved by the Court for handing down | Delivered: | 20/02/2015 |
| (subject to editorial corrections)* |
Plaintiff;
Defendants.
STEPHENS J
Introduction
[1] On 27 March 2007 the plaintiff, CG, was convicted of a number of sex offences for which both concurrent and consecutive prison sentences were subsequently imposed. The effective overall sentence was one of ten years imprisonment with five years being on licence. He was released on licence on 27 February 2012. At the time of his release he was apprehensive about his safety upon his return to the community and was fearful of the reactions of others to his despicable criminal conduct. On the one hand CG, as well as all other convicted offenders who have had determinate prison sentences imposed on them, will return to live in the community. Upon their return they should be protected from others who wish to drive them from their homes or who wish to encourage physical assaults on them. They should not be "hunted" nor once on notice should an internet company facilitate any "hunt" for them. On the other hand there should be and there are in place public protection arrangements in order to assess the risks they continue to pose together with supervision of them in the community so that the public are protected.
[2] I have anonymised the identity of CG for the same reasons as McCloskey J anonymised the plaintiff in XY v Facebook Ireland Ltd [2012] NIQB 96.
[3] The second defendant, Joseph McCloskey, operates a profile/page entitled "Keeping our Kids Safe from Predators 2" upon the first defendant's, Facebook Ireland Limited's, social network. The first defendant also facilitates a profile/page operated by an individual whom I shall identify by the initials "RS," though those are not his real initials. RS is the father of one of CG's victims and I have anonymised RS in order to protect the victim of the sexual crimes committed by CG.
[4] In this action the plaintiff sues both the first and second defendant in relation to a series of postings about him on the profile/page "Keeping our Kids Safe from Predators 2." CG also sues the first defendant in relation to a series of postings about him on RS's profile/page though he has chosen not to sue RS on the basis, CG asserts, of consideration for RS given the harm that CG has caused to RS and his family.
[5] CG brings this action alleging that the defendants and each of them have misused private information, are in breach of Articles 2, 3 and 8 of the ECHR, the Protection from Harassment (Northern Ireland) Order 1997 and that each of them were guilty of actionable negligence. In addition the plaintiff alleges that the first defendant was in breach of the Data Protection Act 1998. The plaintiff seeks damages and an injunction.
[6] Mr Girvan appeared on behalf of the plaintiff, Mr Hopkins appeared on behalf of the first defendant and Mr McKenna appeared on behalf of the second defendant.
The earlier litigation in relation to the second defendant's Facebook page entitled "Keeping our Kids safe from Predators."
[7] Part of the context of this litigation is earlier litigation which commenced on 14 November 2012 involving the first defendant concerning a profile/page which it subsequently transpired was operated by the second defendant, though he was not initially a party to those earlier proceedings. The profile/page was entitled "Keeping our Kids Safe from Predators". The plaintiff in that litigation was not CG but was rather another sex offender, XY. An application against Facebook Ireland Limited for an interlocutory injunction in that earlier case was heard by McCloskey J who gave judgment on 30 November 2012 (XY v Facebook Ireland Ltd [2012] NIQB 96). McCloskey J stated that the offending page in that case was probably created around August 2012. He anonymised XY as:
"The evidence … demonstrates that there are those who are ill disposed to the plaintiff and who are prepared to incite strong feelings of antagonism and hostility towards him with reckless disregard for the possible consequences."
McCloskey J considered the changing content of the offending profile/page in that case and stated:
"I have taken into account both the present content of the offending webpage (less extreme) and its earlier incarnation (unbridled, a veritable runaway train). Some of the "comments" which have been published through this medium are properly and correctly described as threating, intimidatory, inflammatory, provocative, reckless and irresponsible."
He considered that the content of the offending page in that case constituted, prima facie, unlawful harassment of XY and that the perpetuation of the webpage created a real risk of infringing XY's right to freedom from inhuman and degrading treatment under Article 3 ECHR together with his right to respect for private and family life under Article 8 ECHR. Finally, McCloskey J turned to the interim remedy. The interlocutory injunction which he granted did not deal specifically with different postings on the offending webpage but rather ordered the first defendant to remove the whole page relating to XY from the website as this was "the only potentially efficacious remedy open to the court in the present circumstances."
[8] As soon as that injunction was granted the second defendant's profile/page entitled "Keeping our Kids Safe from Predators" was taken down by the first defendant but within hours the second defendant had started a new profile/page on Facebook entitled "Keeping our Kids Safe from Predators 2." As will become apparent I find that the new profile/page was operated on exactly the same basis by exactly the same person with exactly the same aims.
The plaintiff's personal circumstances
[9] The plaintiff is a man in his 40s. He resides with his father who is disabled. He has adult children one of whom is disabled. There is regular supervised contact between the plaintiff and that child.
[10] The plaintiff has complied with all the terms of his licence. He has been assessed as not presenting any significant risk to members of the public. He is under supervision in the community by the responsible authorities.
[11] In assessing the credibility of the plaintiff I have taken into account all the features identified by Gillen J in Thornton v NIHE [2010] NIQB 4 together with CG's criminal convictions.
Public protection arrangements in Northern Ireland
[12] The risks posed by CG as a sex offender are managed on a multi-agency basis under the Public Protection Arrangements in Northern Ireland ("PPANI"). The April 2012 Manual of Practice states that the primary purpose of the assessment and management of risk from sex offenders is to help protect the public from serious harm by reducing their opportunity and/or inclination to re-offend. The assessment and management of the risk posed by offenders is a key task for all agencies and is a legislative requirement under Articles 49-51 of the Criminal Justice (Northern Ireland) Order 2008. Effective risk assessment and management requires planning and the employment of a positive and proactive multi-agency multi-disciplinary approach. A component part of that approach is to be found in the section of the manual that deals with the disclosure of personal data. That section emphasises the need to prevent the inappropriate disclosure of information and that if information is to be disclosed to third parties then that such disclosures must be made on the basis of clear justification and must be supported by all the agencies involved. Even then police, at Assistant Chief Constable level, hold responsibility for making the final decision in relation to disclosure.
[13] It is appropriate for this court to take into account the existence of PPANI as an indication of where the public interest lies.
[14] The evidence in this case as to the management of risks posed by sex offenders, while substantially shorter, was to exactly the same effect as the evidence that was given before me in the case of Callaghan v Independent News and Media Ltd [2009] NIQB 1. In that case I set out at paragraphs [49]-[50] the competing approach as adopted in the USA and in the UK to the public disclosure of details in relation to sex offenders who have been released from prison back into the community. I set out those paragraphs as part of this judgment:
"[49] Most states in the USA require public disclosure of details as to where sex offenders reside and work. For instance in California any vehicle owned or driven by a convicted child sex offender is required to have pink registration plates. The law varies from state to state but the common element is physical identification to the community at large as to the precise whereabouts of sex offenders. The thesis behind these laws is that the public should know the identity of the offenders and are therefore then able to protect themselves. Furthermore community surveillance of sex offenders augments police surveillance. It is argued that under hundreds of watchful eyes, it is more difficult for a sex offender to escape into anonymity. Moreover, this increased surveillance may have a deterrent effect; registered offenders are less likely to commit sex crimes in the future if they believe their chances of detection are greater. Also, community knowledge of sex offenders' identities may help to prevent sex offences, rather than simply help to apprehend sex offenders after an offence has been committed. Individuals can tailor their behaviour to reduce the risk of victimisation by identified sex offenders. Finally, the community may feel empowered by this information rather than feeling helpless in the face of unknown criminals. For these reasons, community notification has gained tremendous public support in the United States in recent years.
[50] The system operated in the United Kingdom is to monitor and supervise the offenders. To increase their chances of securing employment and maintaining themselves in accommodation together with the maintenance of their circle of friends and family. That the authorities provide disclosure to limited and selected individuals to whom disclosure should be made. That the key ingredients to stability for an offender, who is being rehabilitated into the community, are a home, employment and a circle of family and friends. If these ingredients are maintained then the risks of re-offending are substantially reduced. That adverse publicity combined with precise identification of the offenders whereabouts substantially disrupts these key ingredients and thereby increases the risk of re-offending. The smoother the process of rehabilitation is then the less likely the offender will be to re-offend and therefore the greater the safety of the public."
[15] The overwhelming evidence in Callaghan was that the key ingredients to stability for an offender who is being rehabilitated back into the community are a home, employment and a circle of family and friends. If these ingredients are maintained the risk of re-offending and the harm to the community is reduced. If these ingredients are disrupted then the risk of re-offending and of harm to the community is increased. That public information does not reduce the risk of harm to the public but rather increases the risk of re offending and therefore of harm to the public. I concluded in that case that:
"A universal theme throughout the research literature is that there is the ability to reduce the risk of re-offending with stable housing, employment and support and with careful monitoring of the offender. This should be allied to selective and controlled disclosure to a limited number of persons who are in contact with the offender."
[16] I also concluded in that case that:
"The type of community notification scheme envisaged by the defendant, that is the ability to publish an un pixelated photograph of the first named plaintiff thereby enabling all those in his local community to immediately recognise him, combined with the articles that the defendant has published, would increase the risk of serious harm to the public by increasing the risk of the first plaintiff re offending."
[17] I have set out those factual conclusions in that earlier case as a convenient means of summarising and explaining the evidence that was given in this case which was that the profile page "Keeping our kids safe from predators 2" was increasing the risk of sex offenders re-offending and increasing the risk of harm to the public. In this case Mr Pollard, police officer, gave evidence as to his work in the Public Protection Unit. He described the public protection arrangements in place for convicted sex offenders which included very careful consideration as to the disclosure of information and to whom the information is to be disclosed. He in effect stated that the content of the postings in this case were completely contrary to the public interest and to the public protection arrangements. He stated that there had been a total lack of professional control in relation to the publications on Facebook which gave rise to a risk of vigilante groups acting inappropriately and to the risk of public order situations developing. He adverted to social media travelling so fast and the requirement on the part of the police to protect everyone including offenders. He considered that there was a risk to sex offenders from paramilitaries if they were known to them. That sex offenders are attacked by paramilitaries to gain the confidence of people in the area. Mr Pollard's evidence was not challenged. I accept his evidence.
The Facebook website
[18] Facebook is a medium for the dissemination and acquisition of information available to anyone who can access it. Users can disseminate information by establishing independent dedicated pages for a broad range of purposes – for example, the creation of a personal profile or as in this case the pursuit of a campaign. Other Facebook users can access the information on those pages and can then contribute to the page by posting material on it. For someone to post on Facebook they must themselves have a Facebook account.
[19] Facebook state that it is the world's largest social networking site with over 1.3 billion monthly active users worldwide in over 200 jurisdictions, who register an average of 350 million photographs a day and some 3 billion "likes" and comments. In its skeleton argument the first defendant asserted that "with billions of posts, likes, photos, and comments added to Facebook daily, Facebook could not reasonably scour its site in hopes of finding content at issue – a true needle in a haystack."
[20] The first defendant maintains ultimate control over everything that appears on its website and has the ability to remove anything that it wishes at any stage from any of the pages that have been created. In arriving at a decision as to whether to remove material the first defendant purports to apply the standards set out in its terms and conditions. The first defendant states that it can remove any content or information that is posted on Facebook if it believes that it violates its statement or its policies. The statement and policies declare that users:-
(a) will not bully, intimidate or harass any user.
(b) will not post content that is hate speech, threatening, or … incites violence; or contains … graphic or gratuitous violence.
(c) will not do anything unlawful, misleading, malicious or discriminatory.
(d) will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law.
The first defendant also asserts that it does not tolerate bullying or harassment and that whereas it will allow users to speak freely on matters and people of public interest, it will take action on all reports of abusive behaviour directed at private individuals. The first defendant goes on to assert that safety is Facebook's top priority. That it will remove content and may escalate to law enforcement when it perceives a genuine risk of physical harm, or a direct threat to public safety. That users may not credibly threaten others, or organise acts of, what it terms "real world" violence.
[21] Every posting on Facebook has its own Uniform Resource Locator ("URL"). Accordingly an initial posting on any profile/page has one URL and then every comment posted under that initial posting has its own URL. If the main URL is taken down then every subsequent comment posted under it with all their unique URLs are also taken down. If the initial posting is not taken down it is possible to delete any of the individual comments posted under it.
[22] The speed with which social media operates is that the number of comments under the original posting can increase rapidly minute to minute or hour to hour. I consider that expedition is to be considered in the context of each individual case which context includes the speed of social media.
[23] The reporting system operated by the first defendant by which an individual can ask for postings to be removed requires the individual to provide the first defendant with the URLs for each and every posting about which complaint is made. To find a URL of a particular posting the person complaining (or the first defendant as the company monitoring its website) has only to go on to the webpage concerned and to click on each posting and obtain the URL. There is no difficulty in either the first defendant or the plaintiff obtaining the URLs for each individual posting but it is a laborious task for the plaintiff or the plaintiff's representatives to undertake because it involves clicking on some hundreds of posts and then writing down and recording accurately the URLs for each posting. The question arises as to whether that is a reasonable and necessary pre-requisite for the first defendant to arrive at a conclusion in relation to postings. It appears to be a requirement of the first defendant regardless as to whether or not the profile/page is replete with unlawful content or replete with content in breach of Facebook's own standards. The first defendant also requires reasoned contentions in relation to each and every posting. The question also arises as to whether such a requirement is necessary if the person who has to form a view is not uninformed as to the law or whether there has to be a reasoned dissertation in relation to each posting about which complaint is being made.
[24] The question also arises as to whether the requirement to have the URLs of each comment about which complaint is being made merely creates the potential for entering into endless and in some circumstances fruitless correspondence because with each new posting there is a new URL so there is endless potential to identify each URL given the speed with which comments can be added.
Facts in relation to the three series of postings on Facebook
[25] The plaintiff's action relates to three separate series of postings on Facebook. The first series of postings commenced on 22 April 2013 on the second defendant's profile page "Keeping our Kids Safe from Predators 2" and the content was removed by 22 May 2013 or at the latest by 6 June 2013. The second series of postings were on RS's profile/page and commenced on 13 November 2013 and the content was removed on 4 December 2013. The third series of postings, again on RS's profile/page, commenced on 23 December 2013 and the content was removed on 22 January 2014.
(a) The first series of postings on the profile/page "Keeping our Kids Safe from Predators 2"
[26] The second defendant set up, controls and administers the profile page on Facebook entitled "Keeping our Kids Safe from Predators 2." Access to that page is unlimited and anyone can access it in that the second defendant has not imposed any privacy settings. The second defendant can post information on the profile/page, others are allowed by him to post information on the profile/page and he can delete posts made by others.
[27] The general technique adopted by the second defendant in relation to sex offenders in Northern Ireland includes obtaining from the internet press articles published at the time of a sex offender's conviction and then years later to post those articles together with photographs of the sex offender on the profile/page on Facebook "Keeping our Kids Safe from Predators 2." Thereafter the second defendant and those visiting the profile/page are at liberty to make comments about the sex offender and to provide information to each other and generally to the public by making further postings on the profile/page. Therefore the initial posting made by the second defendant on the first defendant's social network is followed by a series of further postings which can be made either by the second defendant or by any member of the public visiting the profile/page.
[28] On 22 April 2013 the second defendant adopted that general technique in relation to CG on the profile/page "Keeping our Kids Safe from Predators 2." At the start of the profile/page there was an entry made by the second defendant which stated:-
"Community. This page is an information site to promote awareness. Please refrain from rude/violent comments. Posting such comments could lead to your removal."
Then on that page the second defendant posted an article about and a photograph of CG both of which had been published in the Irish News at the time of CG's conviction in March 2007. The photograph had been taken in the 1990's. I will not set out the relevant extract from the article because of the risk of jigsaw identification of CG. However a reader of the article as published on the profile/page would have been able to
a) identify CG by name
b) identify that CG had been convicted of a specific number of sex offences
c) identify the age and sex of one of his victims
d) identify the age and sex of another of his victims together with a particular characteristic of that victim and
e) identify the duration over which CG had befriended the parents of one of his victims.
The second defendant posted one of his own comments under the article which was as follows
"say what you like on this one apart from violence my friends."
[29] Despite the entry at the top of the page the second defendant was at the very least indifferent as to rude comments short of violence with absolutely no intention of removing any such comments.
[30] The hard copy of the profile/page which was produced in evidence commences with the post on 22 April 2013 of the article in the Irish News. The subsequent posts in relation to that article are dated 22 April 2013 to 4 May 2013. During that period, 296 people indicated that they liked those entries on the profile page.
[31] The posting of that article attracted some 160 to 180 comments posted by others and by the second defendant. All the comments were hostile to CG. Those comments fall into a number of distinct categories as follows:-
(a) Abusive language such as "bastard", "scumbag", "dirty rotten c**t", "rot in hell ya dirty vermin bastard", "dirt bag" and "scummy dirty bastard".
(b) Violent language and expressions of support for others who would commit violence against CG such as
i. "God love them wanes c**t like dat want it cut off",
ii. "hope they hang then c**t, shud hang them all",
iii. "he will get what's coming to him in jail …",
iv. "he'll get wade right in when they him in jail the scummy bastard",
v. "bring back the rope and hang the bastard",
vi. "cut his hands an dick off can't do no more harm 2 any child again hope he R.I.H",
vii. "deserves everything he gets when he's in jail, hope the inmates torture him SLOWLY, and he suffers BIG TIME!!!",
viii. "a small hatchet would cure that f…",
ix. "shoot the bastard",
x. "give him death penalty",
xi. "a rusty razorblade would cure these perverts",
xii. "he should be shot dead the dirty rootin bastard",
xiii. "this bastard needs beat to death",
xiv. "B&Q should have a discounted rate for a length of rope for peados. F… I will even give them a hand in tying a loop at one end and the other larks foot round the … kneck",
xv. "I'll kick the … stool from under him",
xvi. "they should bring back hangin n hang every God damn one of them",
xvii. "I would tie him to a tree and put a blow torch where he wouldn't want it. And enjoy watching him in pain",
xviii. "cut his hand off",
xix. "piece of shit cut his balls off",
xx. "piece dirt should be hung",
xxi. "they should bring back the electric chair and fry the dirty rotton c…!!! Hope he rots in hell!!!! Gang raped by a load a men in jail!!!!!!" and
xxii. "he should be f********ng hanged and he should be put into a room with the parents or the children he abused and let them deal with him as jail is far too good for the dirty B*******d if I was in the court I would deffo shoot him dead"
(c) Identifying CG's location such as
i. "this pedo is now out after serving only seven years of his ten has been seen in the … area and …",
ii. "the bastard's from … he needs hung",
iii. "this C… lived in my street in … and his brother is as bad. I think they are living somewhere in … I seen them both recently."
iv. "He was in … last week. But he lives in … with his dad and his brother who has also interfered with kids.",
v. "Wish to f… people would stop making up shit about seeing this bastard in …, this is not true, nor does he live in …, his brother might, his dad is dead, he lives in the … area, … Road area, I should know my son was one of his victims" and
vi. "this pedo stays in …. on the … Road and is driving a …".
(d) Providing details about CG from which he could be identified such as "I personally knew this man as he lived in … and has … (then gives a number) kids of his own … (then specifies the sex of the children and the disability from which one of them suffers.)"
(e) Expressions of support for others who would exclude CG from the area in which he is believed to live such as "… Hope he is reported everywhere he goes as he will never be able to put a foot in … again."
(f) Expressions of confusion as to whether he had just been convicted, or whether he was convicted some time ago, whether he was in prison or whether he was in the community such as "Joe are these pedos from a while back or some recently convicted?", "I will pray this man receives the maximum sentence."
(g) Abusive language in relation to members of CG's family such as "… his brother is as bad … he lives in ... with his dad and his brother who has also interfered with kids."
(h) Allegations of other disreputable conduct by CG such as "he was out of … for raping a drunk woman many years ago."
[32] One of the individuals who posted comments on "Keeping our Kids Safe from Predators 2" was RS the father of one of the victims of CG. The comments that he posted were hostile to CG and included for instance annoyance that others posting on the site were incorrectly identifying the locality in which CG lives.
[33] CG learnt about the postings in that on 23 April 2013 he was contacted by a person with a family connection to him and informed about them. The plaintiff contacted his probation officer on 24 April 2013 telling him about the publications on Facebook.
[34] There were "real" effects on a number of individuals and organisations caused by these on line postings on "Keeping our Kids Safe from Predators 2." The effects were felt not only by the plaintiff but also by the plaintiff's father and brother, the plaintiff's disabled child and by those persons responsible for public protection arrangements in Northern Ireland.
[35] The general effect on CG was that he was extremely concerned and lived in increased fear as he anticipated violence being inflicted on him. CG expressed extreme concern, which I accept, as to the attempts of individuals on Facebook which tried to pinpoint where he lived. CG had not only extreme concerns for himself but also for members of his family. There was an effect on his family life as a result of the series of postings putting his relationships with his father and brother under strain and bringing direct contact with his disabled child to a halt.
[36] In his evidence CG did not object to the name calling stating that it was "just part of my conviction. I have to live with that. The name calling is upsetting. It is something I have to live with." CG went on to explain that the part that concerned him is where they threatened to find out or pinpoint where he lived and he strongly objected to the risk of people hurting him or his family.
[37] CG's increased fear of violence being inflicted on him was further enhanced as he believed that one of the individuals who posted comments on the profile/page used to be a commander in the UDA and who he believed had in the past gone to his house to attack him and as a consequence he had to leave the area in which he then lived.
[38] This increased fear of violence being inflicted on him was reinforced by a number of incidents which occurred. There were some discrepancies in the evidence of CG and his brother in relation to these incidents but I consider that in substance CG's accounts of them are correct.
[39] One of the incidents occurred on 20 May 2013. On that date CG was visiting a local post office when he was accosted by a man whom he named. The man pointed and shouted at him when he was sitting in his car and called him a "dirty bastard" and went on to say that "I will have all your details over Facebook". CG reported this incident to the police who advised him to "keep his head down for meantime and avoid routine." CG informed his solicitor who made a contemporaneous note of what had occurred which note included the detail that the individual was shouting so loudly that people were starting to turn and look to see at whom he was shouting. CG was particularly concerned about this individual who had accosted him because he believes that the individual is connected to paramilitaries. CG states, and I accept, that this individual was one of the individuals who made postings under a pseudonym on the second defendant's profile/page "Keeping our Kids Safe from Predators 2."
[40] A further incident occurred at a marina in or around July/August 2013 CG was fishing with his brother when he was verbally abused and threatened with assault. The individual who did this was unknown to CG but knew his name and identity. CG was called a "paedo" who should not be allowed out of prison and the individual stated that if he did not get off the pier he would throw him off the harbour wall. In his evidence CG stated that the individual enquired from him or stated to him that "You are that bastard on Facebook. Take yourself off before I throw you in."
[41] Another incident occurred in approximately October/November 2013 when CG was verbally abused at a cinema by individuals whom he did not know. The individuals referred to him by his surname and, in front of a substantial number of people, the plaintiff was called a "dirty bastard" and was further told to remove himself from the cinema. There were a lot of people who witnessed the incident and the other people in attendance were people whom the plaintiff did not know.
[42] There was a further incident at or about Christmas time 2013/2014 when there was a relatively minor attack on CG in a Tesco's car park. An individual previously unknown to CG attacked him and CG fended him off with a trolley and then ran.
[43] The psychological effects on CG have been assessed by Dr Loughrey, consultant psychiatrist, who examined him on 11 March 2014. The plaintiff gave a history to Dr Loughrey that upon his release from prison he was expecting a lot of trouble but that "before Facebook (he) was okay". He would have gone to local shops but did not use public transport. He avoided areas that would have been influenced by paramilitaries. He stayed away from one particular area. It is also apparent from Dr Loughrey's report that CG had been seen by his general practitioner on 10 September 2012, some considerable time before the publications on Facebook, when he was noted to be under stress and was concerned about paramilitary threats. He was wetting the bed at night time and he was given advice about this. I consider that CG was anxious prior to the postings on Facebook. Dr Loughrey concluded that as a result of the postings on Facebook there was an exacerbation of anxiety. He considered that the exacerbation was probably diminishing in its intensity as CG came to terms with what had happened. Also that in the absence of any new details or distribution the diminution in CG's level of psychological stress was likely to continue. Dr Loughrey considered that the effect on CG's mental health had been marginal rather than fundamental and if circumstances remain as they are there will be no enduring effect on CG's mental health. I accept the evidence of Dr Loughrey but in doing so I do not underestimate the degree of exacerbation of anxiety that was caused given CG's extreme concern and increased fear.
[44] CG's brother gave evidence, which I accept, that he found the publications on Facebook to be stressful. Furthermore that the publications had caused upset not only to him but also to other family members.
[45] The effect on CG's disabled child and CG's relationship with his disabled child occurred because his child was concerned about being seen in CG's company and the potential impact that could have on him. CG had made Social Services aware of the series of postings on "Keeping our Kids Safe from Predators 2." Social Services in conjunction with the Probation Service suspended supervised contact between CG and his disabled child until issues arising from the publication had died down. His child was seen by a clinical psychologist who wrote to CG on 30 May 2013 explaining that given that people are abusive towards CG his disabled child worries about CG and worries about the effect this could have on him in that if others see him with CG that they might start being abusive to him as well. Because of this he did not want direct contact but rather wanted to wait until things calmed down a bit although he wanted to have telephone calls.
[46] On Friday 26 April 2013 the plaintiff's solicitors wrote to both the first defendant at its address in Dublin and to Johns Elliott, the solicitors in Northern Ireland who had previously acted for the first defendant. The letters enclosed a hard copy of the profile page as at 26 April 2014.
[47] There was no reply from the first defendant but on 2 May 2013 Johns Elliott replied stating that Facebook provides users and non-users with online tools to report improper content, that any such content should be reported via the online tools and that the plaintiff should identify the offending content by URLs to enable the second defendant to investigate any complaint. There was no evidence as to why the first defendant required URLs for each individual posting. In effect despite the letter from the plaintiff's solicitors identifying the content and despite the knowledge that must have been acquired by the first defendant by virtue of the XY litigation the first defendant was not prepared to take any steps to investigate until a complaint was made in a particular way.
[48] The plaintiff issued proceedings on 28 May 2013. By letter dated 29 May 2013 the plaintiff served the proceedings on the first defendant.
[49] A letter of claim dated 22 May 2013 was sent to the second defendant upon receipt of which the second defendant immediately took down all the postings in relation to CG.
(b) The second series of postings on RS's profile/page
[50] RS who had posted comments on "Keeping our Kids Safe from Predators 2" also has his own profile/page on Facebook. On 13 November 2013 RS uploaded the photograph of CG that had appeared on the second defendant's profile/page on to his own profile/page. Under that picture he stated:-
"This is … (CG) a convicted sex offender who served only four years of a ten year sentence he is from …(and he identified the area) now living in the … area (which he again identifies). If you have kids beware this man is a danger to all kids male and female. So keep your eyes open and your kids safe. Please share this."
[51] The second series of postings commenced on 13 November 2013. By letter dated 15 November 2013 to the first defendant, the plaintiff's solicitors brought to the attention of the first defendant the postings on RS's webpage and asked the first defendant to remove them by identifying the main URL. The letter recorded that between 13 November 2013 and 15 November 2013 the photo of the plaintiff had been shared 1,622 times and that other Facebook users had commented as follows:
a) "Report to locals, the law is wrong."
b) "If you see kill that c**t"
c) "Keep your eyes open and show your kids his photo to keep them save"
d) "Hang them high"
e) "get him out"
f) "don't understand why things like this are allowed to breath"
g) "watch out for this bastard"
h) "feed it to the rats"
i) "castrate the bastard"
The letter asserted that the comments were defamatory and put CG's life at immediate risk. It did not assert that the posts were unlawful harassment or in breach of the article 3 ECHR or amounted to the unlawful misuse of private information. It is asserted on behalf of the first defendant that the letter of notification was therefore insufficient in that the plaintiff's cause of action is not defamation and he has brought no evidence to justify a finding under article 2 ECHR. That a proper notification should have identified the additional grounds of unlawful harassment, breach of article 3 ECHR and unlawful misuse of private information. However it was apparent to anyone looking at the post and the comments that CG had been named, that he was a convicted sex offender, that the area in which he lived had been identified, that a picture had been posted of him on the internet, that it was expressly suggested that the photo be used to identify him and that it was being expressly suggested that he should be physically harmed. I consider that the first defendant could determine from the information that was made available to them that they ought to have been giving consideration to unlawfulness on the additional grounds of unlawful harassment, breach of article 3 ECHR and unlawful misuse of private information.
[52] In reply by letter dated 15 November 2013 the plaintiff's solicitors were asked by the first defendant's solicitors in Northern Ireland to provide the specific URLs for each and every individual comment made on that webpage.
[53] The plaintiff's solicitors by letter dated 26 November 2013 sent to the first defendant at its address in Dublin stated that "it is clear that this posting identifies our client, the location where he lives and it further states that he is a risk to children. We believe that this posting made without his consent was designed to place him at risk of degrading treatment, harassment, abuse and vigilantism."
[54] By letter dated 27 November 2013 the first defendant's solicitors wrote to the plaintiff's solicitors and stated
"Facebook cannot investigate such comments absent identification of the URL for each specific comment. Indeed, without specific URL's, we were unable to locate the alleged comments on the page which you have identified by URL …"(which is then provided)
[55] At the trial of this action no evidence was called on behalf of the first defendant to establish factually the assertions contained in that letter. I do not accept that the first defendant could not investigate the comments in this case absent identification of the URL for each specific comment.
[56] The sequence after the letter dated 27 November 2013 was that the individual URLs were provided by the plaintiff's solicitors to the first defendant's solicitors on 3 December 2013 and on 4 December 2013. Those letters also identified further comments in addition to those set out in the letter of claim dated 15 November 2013. Social media is not static and accordingly some of those additional comments had been posted between 15 November 2013 and 4 December 2013. They included comments such as "Death sentence," "Please share this, especially to friends you know in … (and names an area) and keep your children safe," "Pedophile living in … (and then names the same area as the previous post) please share," and "share this pic get this scumbag known."
[57] All the material was removed by the first defendant on 4 or 5 December 2013 and this was done by taking down the main URL which had the effect of removing all the subsequent postings under all the subsequent URLs. In effect the first defendant did on 4 or 5 December 2013 what initially it had been requested to do by letter dated 15 November 2013 in that it took down not only the individual postings but also the entire series of postings about CG from RS's page.
(c) The third series of postings on RS's profile/page
[58] The third publication on Facebook by RS was on 23 December 2013 on which date RS reposted the photo of CG. The letter of claim to the first defendant was dated 8 January 2014 and the posting was taken down on 22 January 2014. The aim and content of this third series of postings was equivalent to the first and second series.
The evidence on behalf of the first defendant
[59] The first defendant called no witness to give oral evidence at the trial. An affidavit sworn by Yvonne Cunnane of the first defendant was relied on in relation to the question as to whether the Data Protection Act 1998 applied to the first defendant given that it was a company incorporated in the Republic of Ireland.
[60] The fact that the first defendant called no evidence meant that the court had no evidence in relation to a number of issues.
[61] An issue raised in the first defendant's skeleton argument was that "with billions of posts, likes, photos, and comments added to Facebook daily, Facebook could not reasonably scour its site in hopes of finding content at issue – a true needle in a haystack." Mr Hopkins, on behalf of the first defendant, conceded that the first defendant was not relying on that argument. That concession was entirely appropriate in view of the fact that there was no evidence to support it. The first defendant did not attempt to prove that they did not have the capacity or resources or knowledge to look for or to assess material in relation to the second defendant having been put on notice of his activities by virtue of the XY litigation. I consider that the first defendant was put on notice by the XY litigation of the whole nature of the activities of the second defendant and the degree and nature of his motivation against all sex offenders in Northern Ireland. I also infer that the first defendant knew or ought to have known of the profile/page "Keeping our Kids Safe from Predators 2" given that any simple searches by the first defendant would have revealed the new profile page with an almost identical name and with identical purposes. I consider that the first defendant had the capacity, resources and knowledge to look for and to assess material in relation to CG on the second defendant's profile/page without receiving any letter of claim or any complaint from CG.
[62] Another issue in relation to which the first defendant gave no general evidence was as to the systems that were in place to deal with notifications and as to specifically how the first defendant dealt with the complaints of CG. In her affidavit Yvonne Cunnane of the first defendant asserts that it:-
"Employs a 24/7 reporting mechanism for users (and non-users) to flag potential policy violations that are ultimately reviewed by Facebook's community operations team." (emphasis added)
No general evidence was given by or on behalf of the first defendant as to the general functions and activities of the community's operation team, as to how expeditiously that team reacts, as to what is meant by "ultimately" or as to whether the first defendant pays regard to the public policy in relation to sex offenders under PPANI and what if any steps it takes not to permit that public policy being undermined thereby increasing the risks to members of the public by increasing the risk of reoffending. Furthermore no specific evidence was given by the first defendant as to what actual knowledge it had, how it reacted to complaints made on behalf of CG and as to how expeditious its procedures were in relation to CG. Not only was there no evidence called by the first defendant in relation to these general or specific matters but also no discovery was given by it so that for instance this court had no document on discovery from the first defendant as to training, supervision and compliance procedures in relation to the community operations team and also had no document on discovery as to what if anything that team did when it received complaints in relation to XY as to "Keeping our Kids Safe from Predators" or from CG in relation to "Keeping our Kids Safe from Predators 2" and within what timescale.
[63] I draw the adverse inference against the first defendant that the system would not withstand independent scrutiny and was inadequate.
[64] Despite the lack of evidence as to its internal procedures it was asserted on behalf of the first defendant that it had acted expeditiously once it had received proper notification from the plaintiff of his complaints in relation to the three series of postings. It was also asserted that it had inadequate notification from the plaintiff in order to determine whether the content was unlawful. There was simply no evidence to support either of those propositions. For instance factors in relation to expedition might include the burden of the task, the resources available to deal with that task and the timescales within which the task could have been completed. There was no evidence in relation to any of these matters from the first defendant it being accepted by Mr Hopkins that the burden of proving expedition rested on it. Another factor in relation to expedition would be the consequences if the task was not completed within a limited period of time. For instance if the address of a sex offender was published on Facebook together with an incitement to physically assault him at that address then such a posting would be obviously unlawful and expedition would require immediate removal and any delay in removal would lead to the consequence of the first defendant not being entitled to avail of the limitation of liability under the Electronic Commerce (EC Directive) Regulations 2002.
[65] The first defendant contended that the plaintiff has to establish a claim against it and even if he did that it is not liable for damages under regulations 19 and 22 of the Electronic Commerce (EC Directive) Regulations 2002 that it had received notice or adequate notice from the plaintiff. Regulation 22 provides that, in determining whether a 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 whether the service provider has received a notice through a specified e-mail address and the extent to which any such notice includes a) the full name and address of the sender of the notice; b) details of the location of the information and c) details of the unlawful nature of the activity or information in question. There was no evidence from the first defendant in relation to any matter which in the particular circumstances of this case was relevant.
[66] The first defendant sought to avoid injunctive relief on the basis of the difficulties that would be posed to it in complying with an injunction. They called no evidence to support any factual conclusions in relation to those difficulties.
The evidence on behalf of the second defendant
[67] In assessing the credibility of Mr McCloskey I have taken into account all the features identified by Gillen J in Thornton v NIHE [2010] NIQB 4 together with Mr McCloskey's criminal convictions.
[68] On 25 October 2013 the second defendant posted on the internet that:
"4 months suspended for 3 years for telling a cop to f**** off. The judge said if I tell another 1 to f**** off I am going st8 to jail."
He explained in evidence that he was drunk one night and that a police officer had taken him to task about jay walking which had led to an altercation with the police and subsequent prosecution for jay walking and disorderly behaviour. He also stated that he had been convicted for drug offences having received a sentence of 5 years' imprisonment. He asserted, though I do not accept, that this sentence was imposed for a supply of only one ounce of cannabis. He stated that he has 104 previous convictions though only one involved violence.
[69] Mr McCloskey described setting up the original profile page "Keeping our kids safe from predators" in July 2012. He stated that his motivation for setting up this page was the awful experience that his mother had in that she was the victim, as a child, of repeated sex abuse. He wanted to:
(a) name and shame sex offenders;
(b) provide emotional support for the victims of sex offences; and
(c) set up a data base of all known sex offenders in Northern Ireland so that there was one internet site on which members of the public could determine the identity of sex offenders and where they lived. He considered that this was appropriate as in his view all sex offenders presented a high risk and people needed to know who lives next to them or around the corner from them.
[70] The second defendant does not make any money from the site. He devotes thousands of hours to running it. He would look up newspapers online and repost the material to his website. If information was sent to him then he would also post that material online as well. In effect he was gathering all the available information he could obtain about all the sex offenders in Northern Ireland and publishing that information on his profile/page.
[71] In relation to the first site "Keeping our kids safe from predators," though he had the ability to delete any comment that was posted by others, he did not really care what was posted on that site and accordingly took no steps to control it.
[72] Insight into Mr McCloskey's attitude and the exact purpose of the original profile/page "Keeping our Kids Safe from Predators" and the subsequent profile/page "Keeping our Kids Safe from Predators 2" can be discerned from a number of comments that he has made on the internet (which comments were obtained by a simple Google search against his name) and from his evidence.
(a) On 4 December 2012, shortly after 30 November 2012, the date of the judgment in XY, and accordingly when he had just started the new profile page "Keeping our kids safe from predators 2" he stated:
"I've just had a visit from the local police. apparently, there might be civil cases brought against me for the last page … I SAID YOU CAN'T GET BLOOD OUTTA STONE I'M SKINT THEY CAN WORK AWAY …"
I consider that he is totally indifferent as to the lawfulness of his conduct safe in the knowledge that he cannot suffer any financial penalty. He is quite prepared to pay no attention to the legal protections for CG and to operate outside the law. I consider that he justifies this on the basis of his own view that the law should not afford sex offenders any protection.
(b) In November 2013 the second defendant posted a comment that:
"Instead of Hunger Games it should be Paedophile Games, we could hunt them down on live TV and slaughter them."
In his evidence he was somewhat more restrained in that he stated that he believes that all sex offenders should be castrated and that they should be hanged if they had murdered a child. However I consider that he would be content if a vigilante group or paramilitaries actually physically attacked a sex offender and would be indifferent as to whether they were castrated or hanged.
(c) In August 2013 he posted the following:
"I see the good people of Lisburn have stood up and been counted. The paedophile that I posted about the red Honda Civic has had to get a police escort out of the area. A big pat on the back to all you guys that has made this possible that's 1 less tramp to worry about ……"
He took pride in driving an individual out of his home and he also took pride in the fact that the threat to the safety of the individual was such as to require a police escort.
(d) In August 2013 he posted:
"The satisfaction you get from kicking in a paedophile's front door and going at him with a hammer is unreal."
In his evidence he said that he did not mean this literally in that he had never kicked in paedophile's front door or gone at anyone with a hammer but I consider that at the very least he would not condemn anyone who did so.
(e) Other posts by the second defendant which reveal his true purpose in running the profile/page are
i. "My pal Ashley Gregg is a f***ing legend, he is up in court soon for egging a paedophile's wife. He also should take credit for driving sex offenders out of Limavady. My partner in crime."
ii. "Back to paedophile hunting today."
iii. "Whenever a dog attacks and harms a child, the dog is destroyed. Shouldn't the same be done to paedophiles?"
iv. "Hang paedophile scum!!!"
(f) The second defendant stated in evidence in relation to sex offenders that:
"You are not a human being if you do stuff like that."
I consider that his attitude is that anything that happens to sex offenders is justified in that they are not human beings.
(g) I consider that the second defendant's attitude to sex offenders is motivated by deep hatred.
(h) The second defendant's attitude towards sex offenders can also be illustrated by a post that he made on 28 May he stated:
"I put up a sex offender up the other day by the name of … (and he names the individual) he was living in Prince Street in Lurgan. Now I have been in contact with the landlady and she has informed me that he had gave her a fake name and she had no idea that the police had given the sex offender this new alias to go by. Can I ask you all a little favour. Can the people that is doing damage to her property, could you please stop it? The beast is no longer in the area and has been moved to a new location by the PSNI. The lady had no idea he was a beast, she is actually taking action as I write this status about how he was able to withhold information from her when the questions were asked. Thanks folks."
This post is an illustration that the second defendant names sex offenders, identifies exactly where they live, that his actions required the individual to be moved, that he takes pride in this and that a perfectly innocent landlady was as a consequence having her property damaged. There may be a valid point as to whether the landlady had not been informed by the PSNI as to the true identity of the person who was living with her and if not, then why not. However, that was not the thrust of this post which was taking pride in having intimidated an individual sex offender and requesting that the landlady should not be harassed when her property was being attacked because she was perceived to be friendly to sex offenders.
[73] I consider that the second defendant set up and operated the profile page "Keeping our kids safe from predators" to destroy the family life of sex offenders, to expose them to total humiliation and vilification, to drive them from their homes and to expose them to the risk of serious harm. I consider that he knowingly encourages harassment of sex offenders by other individuals by the comments he makes and by the aim and purpose of the profile/page.
[74] The second defendant stated that setting up the profile page "Keeping our kids safe from predators 2" was simple in that all he had to do was to give his name, age, gender and email address. That when he set up a Facebook page he gave his name as "Joseph McCloskey" or "Joe McCloskey" or "Joe G McCloskey." He stated that he could not block people from the profile/page "Keeping our kids safe from predators 2" but he could delete any comment posted on that page. He stated that Facebook has banned his site twice in that they closed it down first between April and May 2014 for 30 days and then again on 10 June 2014 for 30 days. He stated that the profile/page has 25,000 friends.
[75] The second defendant asserted that after the XY case there was a change of approach by him in that he asked people not to swear or to be abusive. I do not accept that there was any substantial change of attitude. I find that the aims of both profile pages were exactly the same.
[76] The second defendant stated that in relation to CG he thought the crime was totally disgusting and he did not care what anybody wrote about it. He stated that he did not read any of the comments that were posted. I do not accept that evidence and I consider that he knew exactly what was being posted on this part of the site. The second defendant had no insight, even during the court case, that there was an impact not only on CG but also, for instance, on his disabled child. The second defendant appeared to be totally indifferent to the worry and concern that he had caused to CG's child. There was no insight into the risks of mistaken identity. His only concern about the fact that he had not deleted comments from the profile page in relation to CG was not as to the impact those comments would have on CG and on others but whether they could be instrumental in the profile page being closed down. I consider that he was quite content that CG was harassed and abused and that he knew, permitted and facilitated that harassment with the specific aim of upsetting CG and with the aim of putting pressure on CG's father and brother regardless as to the effect on anyone else.
[77] The second defendant accepted that there was a greater risk of reoffending if a sex offender was driven from his home and lost contact with his probation officer and that by this mechanism the risk to the public would be increased. However I consider that he ignored that risk.
[78] The second defendant upon receipt of the Letter of Claim dated 22 May 2013 immediately took down all the postings in relation to CG.
Legal Principles
[79] Mr Girvan in closing the case on behalf of the plaintiff stated that whereas there was overlap between the plaintiff's causes of action that the case against the first defendant was most properly categorised as a misuse of private information and in relation to the second defendant as misuse of private information and harassment. That Article 3 was on the facts of this case the same as harassment. That in relation to misuse of private information the Data Protection Act 1998 provided a useful touchstone as to what information is deemed to be private for the purpose of that tort. That in relation to the tort of misuse of private information or indeed a cause of action under Article 3 or 8 a secondary publisher is not liable prior to notification unless it knew or ought reasonably to have known that such material was likely to include private information or inhuman or degrading content. That if Article 3 was engaged that there could be no question of balancing any Article 10 rights. However, if Article 3 was not engaged then a secondary publisher would either have to be put on notice or would have known or ought reasonably to have known that the balance would come down in favour of those rights as opposed to the Article 10 rights to freedom of expression.
[80] I have set out in Callaghan the constituent elements of both misuse of private information and harassment. I incorporate paragraphs [22]–[32] of that judgment as adjusted in relation to article 2 ECHR in view of the decision in the Matter of an Application by Officers C, D, H & R and other appeals [2012] NICA 47.
[81] In relation to misuse of private information Mr Girvan asserted that the plaintiff had an expectation of privacy in relation to a number of aspects of his life which in shortened form I will summarise below. However, before doing so Mr Girvan relied on the decision in Green Corns Ltd v Claverley Group Limited [2005] EWHC 958 in which at paragraph [62] Tugendhat J stated that:
"The information about individuals relevant to this case is not confined to the addresses where they live. There is other information the disclosure and use of which individuals have a right to control in accordance with Art 8. A useful indication of the sort of personal information that is regarded as sensitive can be found, in addition to the statutes referred to above, in the Data Protection Act 1998 s.6 (although no reliance is placed upon that statute by the applicant in this case). "Sensitive information" as defined in that section includes information as to a person's physical or mental health or condition, sexual life, and the commission or alleged commission by him of any offence."
So in this case the Data Protection Act 1998 provides that "sensitive personal data" consists of information relating to amongst other matters the plaintiffs sexual life, the commission or alleged commission by him of any offence, any proceedings for any offence committed or alleged to have been committed by him and the disposal of such proceedings or the sentence of any court in such proceedings. All of these matters are referred to on the second defendant's profile/page and on RS's profile/page and accordingly Mr Girvan asserts and I agree that the plaintiff had an expectation of privacy in relation to each of them. That expectation of privacy has to be balanced against the Article 10 rights of the defendants but again I consider that it is appropriate to take into account the provisions of the Data Protection Act 1998 which informs that balance.
[82] Mr Girvan also relied upon paragraph [63] of the decision in Green Corns Ltd which emphasised that the combination of information is relevant when considering whether it is information in relation to which there is an expectation of privacy. At paragraph [63] Tugendhat J stated:
"The conjunction of information as two or more of these matters, namely an individual's address, the fact that that person is a child, and the fact that that child has a troubled history of mental health, sexual life and involvement in the commission of crime, will inevitably be regarded as a highly sensitive combination to which the court is very likely to accord some form of protection, subject to other considerations."
I consider that the conjunction or combination of information in this case is relevant to the question of an expectation of privacy.
[83] The aspects of the plaintiff's life in relation to which Mr Girvan asserted that the plaintiff had an expectation in privacy were:
(a) Any photograph of the plaintiff given that it could be used to identify exactly where he lives and increases the risks of attacks upon him together with harassment of him, his father, his brother with effects on all of them including effects on his disabled child.
(b) His name, if used in conjunction with other information which might identify where he lives.
(c) His present address or any description of the area in which he lives.
(d) His previous address or any description of the area in which he previously lived, if that information could be used to identify his present address.
(e) His criminal convictions except in so far as they ought to be disclosed in accordance with the PPANI.
(f) The risks that he poses to the public again except in so far as they ought to be disclosed in accordance with PPANI.
(g) Any information about his family members.
[84] There are obvious competing interests as to disclosure of despicable criminal conduct. The balance quite clearly comes down in favour of disclosure at the time of conviction. However years after an individual has been convicted of criminal offences there could be a different outcome to the balancing exercise so that disclosure is not appropriate. For instance disclosure of spent criminal convictions would only be appropriate in very limited circumstances. The balance in each case depends on a detailed analysis.
Legal principles Data Protection Act 1998
[85] It is accepted that
a) the information on "Keeping our Kids Safe from Predators 2" is "data" within the meaning of section 1
b) both the first and second defendants are "data controllers" within section 1 subject to the qualification that the first defendant contends that the Act does not apply to it
c) the plaintiff is the "data subject"
d) the data is personal data as it is data which relates to a living individual who can be identified (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes expressions of opinion about the plaintiff and any indication of the intentions of the data controller or any other person in respect of the individual.
e) The data is also "sensitive personal data" as it consists of information relating to the plaintiffs physical or mental health or condition, his sexual life, the commission or alleged commission by him of any offence, any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.
f) It is the duty of data controllers to comply with the data protection principles.
g) The first principle is that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
h) The conditions in schedule 2 in so far as they are relevant to this case are
1 The data subject has given his consent to the processing.
…
6(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.
i) The conditions in schedule 3 in so far as they are relevant to this case are that the data subject has given his explicit consent to the processing of the personal data.
[86] "Special purposes" are defined in section 3 as meaning any one or more of the following—
(a) the purposes of journalism,
(b) artistic purposes, and
(c) literary purposes.
Journalism is not defined. In this case the original article in the Irish News would have fallen within the definition of journalism. Mr Girvan considered that the activities of the second defendant could amount to journalism. No party referred to British Broadcasting Corporation and another v Sugar (No 2) [2012] UKSC 4. Even if the activities of the second defendant amounted to journalism it has no impact on this case. Section 32 provides an exception from certain data protection principles in relation to journalism, literature and art. By virtue of that exception personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—
(a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,
(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.
On the facts of this case the second defendant could not reasonably believe that publication would be in the public interest, especially bearing in mind that in considering for the purposes of subsection (1)(b) whether the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with any code of practice which—
(a) is relevant to the publication in question, and
(b) is designated by the Secretary of State by order for the purposes of this subsection.
[87] Section 13 of the Act provides for compensation for failure to comply. Under that section:
(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—
(a) the individual also suffers damage by reason of the contravention, or
(b) the contravention relates to the processing of personal data for the special purposes.
(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.
In this case the plaintiff suffered distress and he alleges that he is entitled to compensation for that distress as he also suffered damage namely the exacerbation of his anxiety state. The contravention relates to the processing of personal data for the special purpose of journalism.
[88] There is a defence to a claim for compensation provided by section 13 (3) which provides that:
"In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned."
That defence is not available in this case.
[89] The issue under Section 5 of the Data Protection Act 1998 is as to whether the Act applied to the first defendant, a company incorporated in the Republic of Ireland. That issue only arose during the trial. Discovery was not given in relation to the issues and no application for discovery or interrogatories had been brought by or on behalf of the plaintiff at an appropriate stage. The issues that arose under Section 5 were:-
(a) whether Facebook Ireland Limited is established in the United Kingdom by virtue of maintaining an office, branch or agency through which it carries on any activity.
(b) if so whether data is processed in the context of that establishment.
[90] In relation to this issue an affidavit was sworn by Yvonne Cunnane of the first defendant and a report from Nicola Niblock of ASM Chartered Accountants was introduced in evidence on behalf of the plaintiff. From those documents the following is apparent:-
(a) Facebook Ireland Limited is a private limited company incorporated in the Republic of Ireland.
(b) Facebook Ireland Limited is wholly owned by Facebook Ireland Holdings which is an unlimited company and does not file accounts. It is not possible to establish from publicly available information details of its trading and intergroup transactions.
(c) Facebook Ireland Holdings is owned by Facebook International Holdings II (99%) which is registered in Ireland and by Facebook Cayman Holdings Limited III (1%) which is registered in the Cayman Islands. The Cayman Islands do not levy corporation tax.
(d) In 2012 Facebook Ireland Limited paid €770.6m to Facebook Ireland Holdings for the right and licence to utilise the Facebook platform.
(e) Facebook Ireland Limited is the data controller with respect to the personal data of users outside the US and Canada.
(f) Facebook UK Limited is a private limited company incorporated in the UK. It is wholly owned by Facebook Global Holdings II LLC. It derives all of its income from providing marketing support services to Facebook Ireland Limited. It does not operate, host or control the Facebook service. It has offices in the United Kingdom and it processes in the United Kingdom data provided by Facebook Ireland Limited in order to generate advertising revenue in the United Kingdom.
(g) A data processing agreement is in place between Facebook Ireland Limited and Facebook UK Limited under which Facebook UK Limited as "data processor" processes certain personal data on behalf of Facebook Ireland Limited as "data controller". Accordingly if Facebook Ireland Limited is established in the United Kingdom by virtue of its connection to Facebook UK Limited then the second half of the test in Section 5 of the Act is satisfied in that data is processed in the context of that establishment.
(h) Facebook Ireland Limited does not have an office located in the United Kingdom. It does not have any physical presence in the United Kingdom.
(i) In effect Facebook UK Limited processes the data of Facebook Ireland Limited in order to target advertising and to earn revenues in the United Kingdom.
[91] The question between the parties is accordingly whether Facebook Ireland Limited by virtue of its relationship with Facebook UK Limited maintains an office, branch or agency through which it carries on any activity in the United Kingdom. There is a relatively high level of possibility that this is the position but on balance I am not persuaded on the evidence before me that the plaintiff has established this to the requisite standard. A different conclusion could be reached on different facts in another case especially if the obligation to give discovery was met at an appropriate stage of the proceedings. I do not make any finding of breach of the Data Protection Act 1998 by the first defendant on the basis that it has not been established that the Act applies to it.
Directive 2000/31/EC and the Electronic Commerce (EC Directive) Regulations 2002
[92] The first defendant is an "information society service" ("ISS") as per recital 17 of Directive 2000/31/EC ("the Directive"). Article 15 of the Directive provides that Member States shall not impose a general obligation on an information society service provider to monitor the information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity.
[93] Under the Electronic Commerce (EC Directive) Regulations 2002 ("the 2002 Regulations") an ISS will not be liable for damages where it does not have actual knowledge of "unlawful activity or information" and 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. If it obtains such knowledge then it will not be liable if it acts expeditiously to remove or disable access to such information.
[94] This gives rise to a limitation on potential liability rather than giving rise to any cause of action. The plaintiff has first to establish a cause of action and thereafter the limitation is that the first defendant cannot be liable until it has actual or constructive knowledge of unlawful activity. The first defendant asserts that in order to have actual knowledge it has to have received from the plaintiff proper notification which includes a complainant needing to identify content by specific URL. It also asserts that it acted expeditiously as soon as it received proper notification from the plaintiff but called no evidence in relation to this.
[95] Regulation 22 of the 2002 Regulations provides that, in determining whether a 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 whether the service provider has received a notice through a specified e-mail address and the extent to which any such notice includes a) the full name and address of the sender of the notice; b) details of the location of the information and c) details of the unlawful nature of the activity or information in question. That requirement for a court to have regard to specific matters is to be seen in the context of a requirement to take into account all matters which appear to it in the particular circumstances to be relevant. It is not an attempt to be prescriptive as to precisely how notice is to be given to a service provider or as to how actual knowledge is acquired. I do not accept the contention on behalf of the first defendant that there is any requirement to give notice in any particular manner or from any particular person. So for instance in this case, actual knowledge of unlawful activity was acquired in three separate ways, namely:
a) by virtue of the XY litigation,
b) by virtue of that litigation combined with the letters sent to the first defendant and to its solicitors, and
c) by virtue of those letters combined with some elementary investigation of the the profile/page and/or the internet.
In the particular circumstances of this case and in relation to each of the three series of postings it was not necessary for the plaintiff to provide URLs of the individual postings or for the plaintiff to set out a definitive analysis of the unlawful nature of each and every posting. By looking at the postings, with the knowledge of the XY litigation the first defendant would have been aware of facts or circumstances from which it would have been apparent to it that the activity or information was plainly unlawful being misuse of private information and harassment of the plaintiff. The only efficacious remedy was to remove all the postings.
[96] For the first defendant to be able to characterise something as unlawful it would need to know something of the strength and weakness of the available defences, see Bunt v Tilley [2007] 1 WLR 1243. However the first defendant in this case has considerable resources at its disposal and does not require to have spelled out to it on each occasion with inappropriate precision the particular laws of the UK which are in issue and which are being contravened. For instance, to take an example not applicable to this case, it can be assumed that the first defendant knows that organising terrorism is unlawful and does not need that to be spelt out to it. It can also be assumed that the first defendant knows that harassing and threatening violence against sex offenders together with attempts to publicise exactly where the sex offender lives are also unlawful being the misuse of private information and contrary to public policy.
Conclusions
[97] I consider that CG had an expectation of privacy in relation to all of the matters set out at paragraph [83] both individually and also given the combination of those matters.
[98] I consider that the balancing exercise comes down firmly in favour of the plaintiff. I will not repeat all the factual conclusions at which I have arrived but repeat that the information that was being published harmed the public interest creating a risk of re offending. It incited violence and hatred. It was indiscriminate and lead to the potential for public order situations to develop. It was an attempt to hunt a sex offender, to drive him from his home and to expose him to vilification.
[99] The second defendant who is responsible for the profile/page is the primary publisher and is liable to the plaintiff for misuse of private information.
[100] All of content of the profile/page "Keeping our Kids Safe from Predators 2" in relation to CG was oppressive and unreasonable and that there was a course of conduct over a period of time which amounted to harassment of CG and which both of the defendants knew or ought to have known amounted to harassment of him. CG's evidence about the abusive language that was used is a factor to be taken into account but it is not determinative. I consider that language was oppressive and unreasonable amounting as it did to a campaign of vilification. I find that the second defendant is liable to the plaintiff for unlawful harassment.
[101] Given that there was no pleaded case in relation to the Data Protection Act 1998 against the second defendant I make no finding against him under that Act.
[102] In relation to the first series of posts it was apparent to the first defendant from the profile/page "Keeping our Kids Safe from Predators 2" and in particular from the content in relation to CG that individuals were trying to find out where convicted sex offenders, including CG lived, with an obvious risk of vigilante violence given the inflammatory language which condoned and incited such violence. The first defendant misused private information in not deleting that information. The content was obviously unlawful being misuse of private information. The first defendant is not able to limit its liability under the Electronic Commerce (EC Directive) Regulations 2002. It is liable to the plaintiff for misuse of private information for the entire period 22 April 2013 to 22 May 2013 or alternatively from the date of receipt of the initial letter dated 26 April 2013 to 22 May 2013.
[103] I arrive at the same conclusions against the first defendant in respect of misuse of private information in relation to the postings on RS's profile page save that the liability arises from the date of receipt of the plaintiff's solicitors letters in relation to each of those series of postings. The liability is from the receipt of the letter dated 15 November 2013 to 5 December 2013 and from receipt of the letter dated 8 January 2014 to 22 January 2014.
[104] The plaintiff seeks an injunction against both defendants preventing them from harassing, pestering, annoying or molesting him whether by publishing, distributing, broadcasting or transmitting any information on the website facebook.com or otherwise. On behalf of the plaintiff Mr Girvan accepted that this injunction was sought only against the second defendant. I make that order against the second defendant.
[105] The plaintiff also sought a mandatory injunction requiring the first defendant to terminate the account of the second defendant. I understood that the account being referred to was the profile/page "Keeping our Kids Safe from Predators 2" and not the private account held by the second defendant. The application is not just limited to any part of that profile/page that refers to CG but all of it which refers to numerous other sex offenders. The profile/page is doing damage to other individuals and clearly is unlawful. One method of approaching the question of an injunction is that the first defendant could anticipate that it might be potentially liable in damages to all or many of the other individuals named on that profile/page and then leaving it to the first defendant to take action and close it down. However that would depend on other individual sex offenders exposing themselves to the emotional and financial costs of litigation. There is also a public interest in play as the profile/page increases the risks to the public. In those circumstances I consider that the only efficacious remedy is to require the first defendant to terminate the profile/page "Keeping our Kids Safe from Predators 2" and I make that order.
[106] In relation to an award of damages the first defendant faces liabilities in relation to all three series of postings whereas the second defendant is only liable for the first series of postings. In relation to the assessment of the amount of damages I was referred to a number of authorities by counsel including AB Limited and others v Facebook Ireland Limited and others [2013] NIQB 14, McGettigan v Short Brothers PLC [2011] NICty 4, Choudhary v Martins [2008] 1 WLR 617 Mosley v News Group Newspapers Limited [2008] EWHC 1777, McGaughey v Sunday Newspapers Limited [2011] NICA 51 and King v Sunday Newspapers Limited [2011] NIQB 101. I consider that the total award of damages should be £20,000. I attribute £15,000 to the first series of postings and £5,000 to the second and third series of postings. Accordingly I enter judgment against both the first defendant and second defendant in favour of the plaintiff in the amount of £15,000 and I further order the first defendant to pay the plaintiff the additional amount of £5,000. The defendants have not sought any order as between each other.