About this case:

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Allowing the appeal, the Court of Appeal held that the publication of the children’s religion was a matter of their personal autonomy – the plaintiff had not been in contact with them since 1998, and they were not a party to the proceedings.

Finding that Facebook should have reacted more expeditiously in relation to a further picture of the plaintiff posted on Facebook which referred to him as a “tout”, the Court of Appeal found Facebook to be liable and reduced the award of damages from £3,000 to £500.

Background

In September 2013 a photograph of J20 standing in front of a Union Jack flag was posted on a Facebook page. J20 was named and the words “Meet Sectarian Parade Organiser” were superimposed on to the photograph, and there was a posting in relation to the flag protests which began when Belfast City Council restricted the number of days during which the Union Jack flag should be flown at Belfast City Hall.

A number of comments were posted on the page in relation to J20’s relationship with his catholic children.

Consequently, J20’s solicitors faxed a letter to Facebook, referring the post, and asking for it and the associated comments to be taken down immediately. The letter stated that if the offending material was not taken down by the following day, an application to the court for an emergency injunction to force this would be made and Facebook would be fixed with the costs. There was no response from Facebook.

Further offensive pictures of J20 were posted on Facebook referring to him as a “tout”, and thereafter J20 applied for emergency injunctive relief to order Facebook to remove the posts. The posts were removed by mid-October.

The Court heard that Facebook polices postings by reference to “Facebook Community Standards” which make clear what is and is not permitted by way of freedom of expression; that the notice they received from J20 and his solicitors was too vague for them to be able to discern what it was in reference too; and that in any event the initial posting did not violate Facebook’s terms of service.

The trial judge held that the reference to the religion of J20’s children and to him being referred to as a tout were unlawful and could not be justified; that Facebook had actual knowledge of this; and that Facebook did not act expeditiously in removing the offending material.

He ruled in favour of J20 and awarded him £3,000 general damages in respect of Facebook’s misuse of private information.

Court of Appeal

Facebook appealed on the following grounds:

The Court of Appeal said there was no dispute about the applicable law which states that a person is entitled to have his reasonable expectation of privacy protected. The question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. In this case, J20 particularised the information which was said to give rise to a reasonable expectation of privacy as being the religion of three of his children and his identification as a tout.

The Court, however, noted the evidence was that the youngest of the children was at least 16, and that J20 had not seen them since 1997/98. As such, there was no evidence from the children.

The Court stated that, as an aspect of personal autonomy, the decision to disclose one’s religious persuasion, if any, is a matter for the person holding that opinion.

J20 further contended that the breach of privacy related to the publication of his relationship with the children.

It was submitted that this was not in the public arena and that any complaint about that relationship should not be brought into the proceedings.

However, the nature of the relationship between J20 and the children was not explored before the trial judge, and consequently could not be raised on appeal.

In defence of the claim in relation to the publication of J20’s children’s religion, Facebook relied on the case of King v Sunday Newspapers Ltd, however the Court distinguished this case on the facts as there was no question of damage to the children’s reputation.

The other issue which J20 complained about was the reference to “tout”. The trial judge was satisfied that this reference constituted misuse of private information. The Court of Appeal concluded that he was entitled to come to that decision:

“An allegation that a person is a tout or informer automatically gives rise to the allegation that there has been a confidential relationship between the person and some agency that he is assisting. A person who had provided confidential information to a relevant agency would as a matter of course reasonably expect that the fact of this communication of the material would be private. The very allegation, therefore, lays a basis for the required level of privacy.”

While Facebook had no liability in relation to any viewing of the reference to “tout” between the day it was posted and when it was brought before the Court - the Court of Appeal held that once Facebook had been notified about the reference to “tout”, that it was required to act expeditiously, but that Facebook failed to do so. As such, Facebook was liable for the publication of the tout allegation from a date around the end of September until 9 October.

In the circumstances, the Court of Appeal assessed the damages in respect of that publication at £500 having regard to the limited period of time during which the post was available to be viewed.