Privacy, Data Protection and Retention, Surveillance
R. v. Fearon
Closed Contracts Expression
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The High Court of Northern Ireland found Facebook Ireland Ltd liable for “misuse of private information” for disparaging posts hosted on its social media site. A man (J20) sued Facebook Ireland Ltd for harassment and “misuse of private information” for posts on three different pages that included remarks about his political affiliation, personal history, his relationship with his children, his children’s religious affiliation, and his possible status as a police informant. The Court rejected the harassment claim finding the posts did “not cross the boundary between what is unattractive and unreasonable as opposed to what is oppressive and unacceptable.” However, the Court found that the information relating to J20’s children and the accusations that he was a police informant were private. Moreover, the Court determined that Facebook was not exempt from liability since it had received “actual notice” of the unlawfulness of the posts through their online complaints procedure and a solicitor’s letter and had decided not to take the posts down.
A claim of harassment and misuse of private information was brought before the High Court of Northern Ireland by an individual identified only as J20, who was an unemployed man in his fifties. This claim was brought against Facebook Ireland Ltd, the entity with whom Facebook users contract when they set up an account outside North America. J20’s claim related to posts that appeared on three separate Facebook pages, entitled “Irish Blessings”, “Belfast Banter” and “Ardoyne under Siege”, in September 2013 . The posts contained four photographs of J20, in three he was standing in front of a Union Jack Flag and in the other he was in a public place holding a fish towards the camera. The posts referred to him as “sectarian”, “a loyalist bigot”, “a scum woman beating snake”, “a coward”, and “a tout”. “Tout” is Northern Irish slang for a police informant. The posts also contained comments about his children being Catholic, and allegations that he does not bother with them.
Around the time of these posts, J20 had been actively involved in parades which were organised in opposition to the Belfast City Council’s decision to restrict the flying of the Union Jack Flag, the national flag of the United Kingdom. In February 2014, J20 was convicted of disorderly behavior after an incident in August 2013 at a protest in a city park. J20 had also spent 12-13 years in prison in the past, during which time he had been in contact with paramilitaries. He also had a history of stress, depression, and anxiety which he was treating with medication.
J20 reported the posts to Facebook as directed in its Community Standards, complaining that the posts were “annoying and distasteful humour” but never received a reply. It was also suggested that J20’s friends submitted complaints about the posts in the same way. It was later confirmed that Facebook assessed the relevant material and decided to not remove it. On September 13, 2013, J20’s solicitors sent a letter to Facebook demanding that it remove the posts because they put their client’s life and physical well-being at risk. When Facebook did not remove the posts or respond to this correspondence, which was marked “extremely urgent”, J20’s solicitors applied for emergency interim injunctive relief to have the posts removed. Such an order was granted on September 27, 2013. Facebook deleted the posts on October 9, 2013.
J20 sued Facebook Ireland Ltd for harassment and misuse of public information. In addition to arguing that the claims had not been proven, Facebook argued that it was protected under the Electronic Commerce Regulations 2002 (2002 Regulations) which exempted Information Society Services (ISSs) from liability in damages where they do not have “actual knowledge” of the unlawful activity and/or are “not aware of the facts or circumstances from which it would have been apparent to” them that the activity was unlawful . To benefit from this exemption, the ISS must also act expeditiously to remove the content upon obtaining this knowledge (Regulation 19 of the 2002 Regulations).
To understand the issues engaged by this case, it is important to highlight the context in which it arose. Northern Ireland is a nation within the United Kingdom that has experienced a turbulent past due (primarily) to its divided political and cultural history. The most polarised sections of Northern Ireland’s population can be broadly categorized as the loyalist and republican communities. Loyalists are individuals, usually of the Protestant faith, who believe in Northern Ireland remaining part of the United Kingdom. Republicans are individuals, usually of the Catholic faith, who believe in Northern Ireland becoming part of a United Ireland. Both terms have also been used to describe individuals who are willing to use, or support, paramilitary violence to achieve their political ideologies. In the 1960s, this division gave rise to a conflict that has come to be known as “The Troubles”. At the time of this case, Northern Ireland was still undergoing a peace process following this conflict. An issue of particular contention following “The Troubles” is the flying or use of the national flags of either the United Kingdom or Ireland, as this usually denotes an affiliation with a particular political ideology.
Colton, J., delivered the judgment of the High Court of Northern Ireland (Court).
The Court first examined the harassment claim. The tort of harassment is stated in Article 3 of the Protection from Harassment Order 1997 (Northern Ireland) which forbids a course of conduct amounting to harassment of another where a person knows or ought to have known their conduct amounts to harassment. The Court set out the elements that have to be proved to succeed in a claim of harassment (quoting King v. Sunday Newspapers), namely;
In considering these elements, the Court noted it had to take into account the social or working context in which it occurs. The Court found that while the conduct in the posts may have been in poor taste, it did “not cross the boundary between what is unattractive and unreasonable as opposed to what is oppressive and unacceptable.” [para. 16] Accordingly, the harassment claim did not succeed.
The Court then went on to consider the claim based on the tort of “misuse of private information”. The Court reiterated that, in order to establish liability, it must first ascertain what information is being relied on by the plaintiff, then consider (i) whether the plaintiff has a “reasonable expectation of privacy” over the information, and (ii) whether the posting of the information was proportionate. The Court noted that the test for whether there is a “reasonable expectation of privacy” involves consideration of “what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced the same publicity.” (at para. 18, quoting Callaghan) This requires taking into account all the facts and circumstances of the case.
J20 alleged that his likeness (via the photos), his name, references to his medical and family history, references to his children, references to where he lived, and the implication that he was a “tout” individually amounted to “private” information.
The Court noted that J20 was someone who had been actively engaged in protests and had engaged in acts of public disorder. In this context, the Court reasoned that J20 should have “broad shoulders” in response to criticism. [para. 24] In relation to the photographs, the Court took into account the fact that the photographs had been taken in a public place. The Court also held that J20’s expectation of privacy over his name, age and where he lived was lessened by his previous conviction as these matters became a matter of public record. [para. 27]
Regarding the references to his children, the Court looked to the European Convention (particularly Article 8) and existing cases in Northern Ireland for guidance. The Court found that even though the children were not plaintiffs in the claim, the information could still be relied on by J20 as an individual “normally has a reasonable expectation of privacy in respect of information relating to his private, intimate and family relationships.” [para. 33, quoting King v. Sunday Newspapers]. The references to J20’s children and their religious affiliations were unjustified even in the context of J20’s participation in protests and, therefore, constituted “misuse of private information”.
The Court then turned to the references implying that J20 was a “tout” (i.e. an informer). The Court noted that “[t]he suggestion that a person is an informer is one that has particular resonance in this jurisdiction. A person so identified may be placed in danger from paramilitaries and may be ostracised from his community.” [para. 35] The truth or falsity of the suggestion regarding cooperation with police did not affect the claim in “misuse of private information” (as it would have done with a defamation claim). In light of this, the Court held that it was “misuse of private information” to publish implications that he was an informant on Facebook.
Having determined that the disclosure of some of the information on Facebook amounted to “misuse of private information”, the Court considered whether Facebook fell within the exemptions provided by the 2002 Regulations. The Court noted that no liability will arise without “actual notice” of the matters giving rise to the cause of action in “misuse of private information”. In this case, the Court determined a number of matters to be particularly relevant in their finding that Facebook had “actual notice” of the unlawful activity. Firstly, the plaintiff and his friends made complaints through Facebook’s own online complaints procedure. This procedure did not allow for a complainer to categorize the legal nature of their complaint (it only allowed for pre-prepared boxes to be ticked). Furthermore, the plaintiff and his friends could not be expected to set out the legal nature of their complaint. Therefore, the Court found that once a complaint had been received by Facebook, the onus shifted on them to assess the alleged unlawful content. Secondly, the solicitor’s letter set out the impugned posts and made express reference to the fact that the plaintiff was in fear of his life (the Court did accept, however, that the solicitors should have been more specific about the legal basis of the complaint). The Court expected Facebook to know the relevant law on defamation, harassment and misuse of private information when a complaint had been drawn to their attention. Taking these matters into account, the Court determined that the information subject to the complaints in this case were prima facie unlawful and, therefore, Facebook did not require more information than set out in the complaints and the letter to come to a conclusion on the lawfulness of the material. In this regard, the Court drew a distinction with cases such as innuendo defamation, where further information might be required to ascertain the basis of the claim.
In short, Facebook “had sufficient facts and circumstances before it to make it apparent that the publication of the information … was private”, which amounted to actual notice. [para. 75] The Court also concluded that Facebook had not acted expeditiously to remove the content following this notice. In fact, it was significant that Facebook reviewed the posts and decided not to remove the material.
The Court then devoted a lengthy discussion to medical evaluations of J20 provided to the Court for the purposes of assessing damages. The Court ultimately concluded that J20 had not established “that he ha[d] suffered a psychiatric injury as a result of the postings”. The Court awarded modest damages of £3,000. [para. 94]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression as it risks making social media networks more reactive to complaints in relation to posts on their sites. According to this decision, in cases where “misuse of private information” is “apparent”, a simple complaint to a social media site will be sufficient to put them on notice and fix them with liability (if they do not remove the content expeditiously). The decision raises similar issues to that presented by the judgment of the Grand Chamber of the European Court of Human Rights in Delfi v. Estonia, which appeared to endorse laws that fix online news portals with liability for “clearly unlawful speech” regardless of whether they received notice. The suggestion that less detailed notice is required before an ISS is liable for content where its unlawfulness is “clear” or “apparent” is unhelpful, and could act as an incentive for ISSs to over-censor speech.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Cases from the High Court of Justice in Northern Ireland, Queen’s Bench Division, are binding on lower county courts, but may be appealed to the Court of Appeal.
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