Question of “actual knowledge” arises in misuse of private information case


Re: J20 v Facebook Ireland Ltd [2016] NIQB 98

The plaintiff brought a claim against Facebook in relation to a series of postings about him on three web pages hosted by the defendant. The plaintiff claimed harassment and misuse of private information. The majority of the postings were photographs of the plaintiff at political “flag protests” and associated comments. Facebook  argued that the plaintiff by taking part in public political protests had “entered the fray” and had no reasonable expectation of privacy in relation to the postings, alternatively that under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 they were not liable for damages. The Judge rejected the harassment claim and upheld Facebook’s argument that in relation to the majority of the postings the plaintiff had no reasonable expectation of privacy because he had voluntarily participated in public political protests. However, in relation to two postings (one which mentioned the religion of the plaintiff’s children, and another which implied he might be a “tout” or police informer) the Judge held that the plaintiff did have a reasonable expectation of privacy, and the postings were unjustified. The issue in relation to those two postings was whether Facebook had “actual knowledge” of the misuse of private information. There was no obligation to proactively monitor sites. However, the Court held that Facebook had reviewed the page in question after receiving a letter before action and an application for injunctive relief and that it was apparent on the face of the two postings that they were unlawful. Facebook accordingly had sufficient facts and circumstances before it to make it apparent that the publication of the information was private. Facebook chose not to remove the information when a complaint was made and thus the defendant was liable for the misuse of private information. The plaintiff’s claim that the postings had caused him psychiatric injury was rejected and the Judge awarded him only modest damages of £3000.

Antony White QC was involved in this case.