Facebook, unlawful harassment and the right to privacy

XY v Facebook Ireland Ltd [2012] NIQB 96 (30 November 2012) Summary

The High Court of Justice in Northern Ireland, Queen’s Bench Division, recently considered and granted a sex offender’s application for an interim injunction to force Facebook to remove a page that prima facie constituted unlawful harassment of him.

Facts

The plaintiff had, since 1980, been convicted of a total of 15 different child sex offences. In August 2012, a Facebook site was created called “Keeping Our Kids Safe from Predators”, and it included various details of the plaintiff such as his identity and photograph, upon which users would comment. The Facebook page was open and publically accessible, and any member was able to post material and comments, contributing to the ongoing growth of the page. The judge described the comments relating to the plaintiff on the page as “threatening, intimidatory, inflammatory, provocative, reckless and irresponsible.”

The plaintiff sought a final injunction and damages against Facebook Ireland Limited, and pending final relief, sought an interim injunction either requiring Facebook to remove the page or monitor its site to ensure that no other material relating to him would appear.

The plaintiff deposed that he had ill health and was frightened, anxious and distressed as a result of the publication of the material, which he believed would lead to an attack on him or his home. He particularly mentioned a threat that he would be “burned out” of his rented accommodation.

Article 3 of the European Convention on Human Rights provides:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment

Article 8 of the European Convention on Human Rights provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.

By virtue of section 6 of the Human Rights Act 1998 (UK), the Court, as a public authority, is required to avoid acting incompatibly with the plaintiff’s rights under articles 3 and 8.

Decision

Justice McCloskey made strong references to the fact that “we live in a society governed by the rule of law” and “non-discrimination… is one of the towering principles of the common law”. Given that the sanctions imposed by the penal law on offenders are “presumptively” adequate and exhaustive, His Honour endorsed the principle that criminals are punished by due process of law, and not otherwise, “in a society which treats anarchy as repugnant”.

On that basis, his Honour recognised that, despite his offences, the plaintiff, “as a member of society governed by the rule of law”, was entitled to seek the protection of the law, including those articles of the Convention set out above and the legislative protection afforded by the Protection From Harassment Order 1997 (NI).

In determining the plaintiff’s application for interim relief, the Court applied the well-known tests set out in American Cyanimid v Ethicon Ltd [1975] UKHL 1 – namely, whether there was an arguable case for final relief and whether the balance of convenience favoured the granting of the injunction.

Furthermore, in a case where freedom of expression was also involved, the Court was also obliged to consider section 12(3) of the Human Rights Act 1998 (UK), which precludes the grant of relief  "unless the Court is satisfied that the applicant is likely to establish [at trial] that publication should not be allowed". While that standard generally requires an applicant to satisfy the Court it would “probably” succeed at trial, the Court recognised that the standard was not to be rigidly and inflexibly construed in circumstances where there was a risk of personal injury, following Cream Holdings v Bannerjee [2005] 1 AC 253.

Justice McCloskey easily resolved the balance of convenience test in favour of the plaintiff. His Honour held that the granting of the injunctive relief would give only minimal inconvenience to Facebook and no evident financial loss, while the plaintiff would be protected against unlawful conduct, the consequences of which could be serious.

Moreover, his Honour was satisfied that:

• the contents of the Facebook page constituted prima facie unlawful harassment of the plaintiff;
• the perpetuation of the webpage created a “real risk” that the plaintiff’s article 3 and article 8 rights would be infringed; and
• the section 12 (3) threshold was comfortably surpassed, given that plaintiff’s case had “compelling” prospects of success at trial.

On that basis, the Court granted the plaintiff’s application for an interim injunction requiring Facebook to remove the offending page, commenting that it was “the only potentially efficacious remedy open to the Court in the present circumstances.” However, the wider order sought by the plaintiff, that Facebook monitor its website for republication of the offending material, was refused on the grounds that the order would lack precision, impose a disproportionate burden and require potentially excessive supervision by the Court.

Justice McCloskey recognised that the information about the plaintiff that was published on Facebook, including his name, physical appearance, criminal record and whereabouts was, and would remain, in the public domain. The injunction was not designed to suppress that information, but rather it was directed to ensuring that plaintiff would not be exposed to unlawful conduct constituting harassment through the medium of the Facebook page.

An ancillary issue in the proceedings was whether it was appropriate to grant anonymity to the plaintiff. Justice McCloskey recognised that the nature of the proceedings, if the plaintiff’s identity were made public, would expose the plaintiff to a risk of treatment proscribed by articles 3 and 8 of the Convention, and as such the application for anonymity was granted.

Commentary

Article 8 and article 10 of the European Convention are broadly similar to article 10 and article 13 of the Victorian Charter, although article 13 goes further in protecting the right of a person not to have his or her reputation unlawfully attacked. As such, the case provides useful potential guidance on the relevant principles to be applied by the Court, as a public authority, in a similar fact scenario, although noting Justice McCloskey’s comment that “cases of this nature will, inevitably, be intensely fact-sensitive”. However, as there was no party in the case asserting the competing Convention right to freedom of expression, it is possible that an Australian Court could take a different approach.

The decision is available online at: http://www.bailii.org/nie/cases/NIHC/QB/2012/96.html

Stacey McEvoy is a lawyer at Allens.