Keeping Kids SafeIn CG v. Facebook Ireland Ltd and Joseph McCloskey ([2015] NIQB 11) a convicted sex offender was awarded £20,000 for misuse of private information and harassment claims brought in respect of a Facebook page designed to identify and track the whereabouts of sex offenders.  An injunction was granted against Facebook.

Background

CG was a convicted sex offender who had been released on licence. He brought proceedings against Mr McCloskey in respect of a profile/page operated by him entitled “Keep our Kids Safe from Predators 2” and against Facebook in respect of both that page and a similar page operated by “RS”, a father of one of CG’s victims. No proceedings were brought against RS.

CG complained of three consecutive series of postings on Facebook – one on the “Keep our Kids Safe from Predators 2” and the other two on RS’s page. Broadly speaking, each consisted of the publication of a photograph of CG together with information identifying him as a sex offender. This was followed by further posts and/or comments from viewers of the material consisting of verbal abuse, threats, and information as to identification and location. Both the photograph and details of the convictions had been harvested by Mr McCloskey from the public domain at the time of CG’s conviction. Following receipt of a letter of claim from CG’s solicitors, Mr McCloskey immediately removed all postings relating to CG. The postings on RS’s page were removed by Facebook, in each case some time after receipt of complaint.

CG claimed against both defendants that the material posted amounted to a misuse of private information, was in breach of Articles 2, 3 and 8 of the ECHR, amounted to harassment of him contrary to the Protection from Harassment (Northern Ireland) Order 1997 and that each of them were guilty of actionable negligence. For good measure he also asserted that Facebook was in breach of the Data Protection Act 1998. In closing, however, it was submitted for CG that the case against Facebook was most properly categorised as misuse of private information and against Mr McCloskey as misuse of private information and harassment, and it was upon these claims that the judgment was focused.

Judgment

The Judge found that Mr McCloskey’s purpose in setting up the profile/page, which on his evidence had 25,000 friends, was to destroy the family life of sex offenders, to expose them to total humiliation and vilification, to drive them from their homes and expose them to the risk of serious harm. The Judge also found that Mr McCloskey knowingly encouraged harassment of sex offenders by other individuals by the comments he makes and by the aim and purpose of his page ([73]).

In relation to the harassment claim, the Judge had little difficulty in finding that Mr McCloskey had engaged in a course of conduct amounting to harassment of CG.

The general effect of the postings on CG was that he “was extremely concerned and lived in increased fear as he anticipated violence being inflicted on him” ([35]). This fear was reinforced by a number of incidents when he was verbally abused and threatened in public by individuals he did not know who claimed to recognise him from Facebook. He was “quite content” that CG was harassed and abused and “he knew, permitted and facilitated that harassment”” ([76])

In relation to misuse of private information it was submitted, and the Court accepted, that the provisions of the DPA provide a touchstone in both (1) considering whether there was a reasonable expectation of privacy in relation to the information published, and (2) conducting the balancing exercise between CG’s Article 8 rights and the Article 10 rights of the defendants. In relation to stage 1, since, “sensitive personal data” under the DPA includes information relating to sexual life, the commission of offences and proceedings/disposal of proceedings in relation to criminal proceedings, it was found that CG had an expectation of privacy in relation to such information.

The particular aspects of CG’s life in relation to which an expectation of privacy was asserted and found (both individually and in combination) were:

  • any photograph of the CG given that it could be used to identify where he lives and increase the risk of attack/harassment of him and his family
  • his name, if used in conjunction with other information which might identify where he lives
  • his present address or locality
  • his previous address or locality
  • his criminal convictions except in so far as they ought to be disclosed in accordance with public protection arrangements in Northern Ireland (PPANI)
  • the risks he poses to the public except in so far as they ought to be disclosed in accordance with PPANI
  • any information about his family members

So far as the second stage of the privacy analysis was concerned, the Judge acknowledged that there are obvious competing interests as to disclosure of despicable conduct. Whereas, at the time of conviction, the balance comes down in favour of disclosure, years after there could be a different outcome. In each case a detailed analysis is required in order to determine where the balance lies ([84]).

In order to do that, at [85] to [88] the Judge considered whether any defence or exemption would have been available to Mr McCloskey under the DPA. None of the schedule 2 or 3 conditions necessary for the processing of sensitive personal data were present. Further, if Mr McCloskey’s activities amounted to journalism, he could not avail himself of section 32 because he could not, on the facts of the case, reasonably believe that the publication was in the public interest.

The Judge concluded (at [98]) that the balancing exercise came down firmly in favour of CG because the information that was being published harmed the public interest creating a risk of re-offending, incited violence and hatred, was indiscriminate and lead to the potential for public order situations to develop and was an attempt to hunt a sex offender, to drive him from his home and expose him to vilification. Further, all of the content of Mr McCloskey’s profile/page was oppressive and unreasonable and there was a course of conduct over a period of time which amounted to harassment of CG and which both defendants knew or ought to have known amounted to harassment of him.

Accordingly, Mr McCloskey was liable to CG for harassment and misuse of private information.

Facebook sought to avoid liability by reliance on the requirement for actual or constructive knowledge of unlawful activity in the provisions of the Electronic Commerce (EC Directive) Regulations 2002. Facebook asserted, in reliance on regulation 22, that in order to have the requisite knowledge it needed to have received from CG notification identifying specific URLs in relation to each posting and comment complained of. Regulation 22 sets out the particular matters that the Court shall have regard to in determining whether a service provider has been placed on notice and can therefore be held liable. These include “details of the location of the information” and “details of the unlawful nature of the activity or information in question”.

However, regulation 22 also provides that the Court “shall take into account all matters which appear to it in the particular circumstances to be relevant”. The Judge was highly critical of demands made by Facebook in correspondence for the provision of the URL for every offending posting and comment, together with an explanation in relation to each as to why it transgressed, before it would take any steps to investigate a complaint.

He found that regulation 22 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 required” and must be seen in the context of a requirement to take into account all matters which appear to be relevant ([95]). In the present circumstances, the requisite actual knowledge was acquired in three separate ways namely: (1) by virtue of previous litigation concerning a previous iteration of the page/profile, also operated by Mr McCloskey (XY v. Facebook Ireland Ltd [2012] NIQB 96), (2) by virtue of the previous litigation combined with the letters sent to Facebook and to its solicitors, and (3) by virtue of those letters combined with some elementary investigation of the offending profile/page.

The Judge found that Facebook

“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” ([96]).

He gave the example that it can be assumed that Facebook knows that organising terrorism is unlawful, and does not need that to be spelt out.

“It can also be assumed that [Facebook] knows that harassing and threatening violence against sex offenders together with attempt to publicise exactly where the sex offender lives are also unlawful being the misuse of private information and contrary to public policy” ([96]).

Accordingly, Facebook had misused private information in not deleting the information about CG on the “Keeping our Kids Safe from Predators 2” profile/page, the content of which was obviously unlawful being a misuse of private information. It was not able to limit its liability claiming lack of knowledge under regulation 22 and was therefore liable for the whole period of posting ([102]). The same conclusions were reached in relation to the postings on RS’s profile page save that liability only arose from the date of receipt of CG’s solicitors’ letters in relation to each of the two series of postings ([103]).

As a result, CG was awarded damages totaling £20,000. An anti-harassment injunction was made against Mr McCloskey and a mandatory injunction was made against Facebook requiring it to terminate the entirety of the “Keeping our Kids Safe from Predators 2” profile/page including all material referring to other sex offenders as it “is doing damage to other individuals and is clearly unlawful” ([105]). It appears that no ancillary prohibitory order was made against Mr McCloskey to prevent the creation of “Keep our Kids Safe from Predators 3” and that no order was made that no order was made in relation to the material that had been posted on RS’s page.

Comment

The decision has a number of notable features. First, a mandatory injunction was made against Facebook requiring it to take down an entire page despite the fact that the offending material had been removed from it immediately following receipt of the letter of claim.

Second, it appears that that mandatory injunction was made not so much to protect the rights of CG, (whose material had been removed from the page), but of the other sex offenders featured on the page.

Despite making such a broad order against Facebook, however, no complementary order designed to stop Mr McCloskey from targeting other individuals in the future was made. This is a somewhat curious omission especially given, as noted above, that this was the second time that the unrepentant Mr McCloskey had found himself before the Courts in respect of his Facebook campaigns against sex offenders. As a result, there is nothing to stop him setting up “Keep our Kids Safe from Predators 3”.

Third, the Judge used the definition of sensitive personal data and other provisions of the Data Protection Act 1998 (“the DPA”) as the touchstones for his determination of the misuse of private information claim.

It seems from the judgment that the inspiration for this came from Tugendhat J in Green Corns Ltd v. Claverley Group Limited [2005] EWHC 958 in which the Judge stated at [62] that the DPA provided a useful indication of the sort of personal information which is regarded as sensitive and which individuals have a right to control in accordance with Article 8 ([81]).

The obvious fallacy of this approach is that sensitive personal data covers areas where there is no reasonable expectation of privacy, for example: “David Cameron is the Conservative Prime Minister, who comes from a traditional English background”. Similarly, it is difficult to see how, absent the application of a DPA-style analysis, CG could sensibly have argued that his image, or the fact of his conviction for sex offences was, or had become, private information.

Finally, the Judge gave short shrift to Facebook’s argument that it did not have “actual knowledge” for the purpose of regulation 22 of the Electronic Commerce (EC Directive) Regulations 2002 unless and until it had been given the URL for each offending post or comment. This more proportionate approach to the issue will be welcome news to many and follows a similar line to that adopted in Mosley v. Google ([2015] EWHC 59 (QB)).

Lorna Skinner is a barrister at Matrix Chambers specialising in media and information law