03/02/2020 CG v Facebook Ireland Ltd & Anor [2016] NICA 54 (21 December 2016) Indeed it is important to note that despite the invitation of Facebook’'s solicitors to raise the matter with the police no information was forthcoming from them suggesting any risk to the respondent. The correspondence did not, therefore, provide actual notice of the basis of claim which is now advanced. [65] That leads to consideration of whether the correspondence made the basis of claim apparent. The content of the Predators 2 page referred to the respondent, his conviction and his photograph as published by the Irish News in 2007. This was information that had previously been published. The relatively recent conviction for a serious sexual offence was public information. Even if, for some reason, it fell outside the guidance given in R(T) Facebook had not been informed of any fact or circumstance to explain why that should be so. Similarly there was nothing to indicate that the republishing of the respondent’'s photograph constituted private information. No case was made in the correspondence to indicate why that photograph consisted of private information. [66] Many of the comments were innocuous and merely included the heart symbol. Some were abusive and threatening. Three of the comments referred to a general area in which the respondent was believed to be living. There was, however, nothing in the letter of claim to indicate that the publication of that information was the issue in respect of which the complaint was being made. No further correspondence was sent directly to Facebook until after the site had been taken down. There was correspondence to Facebook’'s solicitors but this did not add to Facebook’'s knowledge. Those solicitors directed the respondent’'s solicitors to the online reporting mechanism. [67] Despite the fact that there was no attempt to use the online reporting system in this case the judge noted that no general evidence was given as to the accuracy of the notification system. He drew the adverse inference that the absence of discovery and evidence in relation to the system indicated that it was inadequate and would not withstand independent scrutiny. The absence of evidence was unsurprising given that the adequacy of the notification system was not in issue in the case. The respondent did not attempt to utilise it at any stage of these proceedings. In those circumstances we do not consider that it was open to the learned trial judge to draw the adverse inference that the system was inadequate. [68] As we have noted the learned trial judge concluded at paragraph [100] that the Predators 2 site was oppressive and unreasonable in relation to the respondent and that both appellants knew or ought to have known that it amounted to harassment of them. Part of the difficulty with this case is that the issue in this appeal has centred solely on the tort of misuse of private information whereas the first instance litigation was concerned also with the remedy for harassment by McCloskey. The only information notified to Facebook by the correspondence was that set out at paragraphs [65] and [66] above. We accept that Facebook had an obligation to read the material provided with the correspondence but abusive comments about the nature of the offending was not misuse of private information. The correspondence contained three references to the general area in which the offender was allegedly living but the lack of specificity could not have made it apparent that the information was private. By the time of trial the judge had considerably more material including further references to the area in which the respondent lived. In his conclusion on harassment and misuse of private information he relied heavily on the importance of the PPANI and his findings about other activities carried out in respect of other offenders by McCloskey. None of that information was conveyed to Facebook prior to McCloskey’'s site being taken down. [69] We are satisfied that the notice and take down procedure contemplated by the Directive and 2002 Regulations is intended to be a relatively informal and speedy process by which those entitled to protection can get a remedy. It follows, therefore, that the omission of the correct form of legal characterisation of the claim ought not to be determinative of the knowledge of facts and circumstances which fix social networking sites such as Facebook with liability. What is necessary is the identification of a substantive complaint in respect of which the relevant unlawful activity is apparent. We have concluded that the substance of the privacy claim was the publication of material tending to identify the location in which the respondent was residing in the context of the information on the profile page and the threatening comments. The correspondence did not, however, express any concern about the publication of the area in which the respondent was allegedly residing. Without some indication in the letter of claim that the address was the issue we do www.bailii.org/nie/cases/NICA/2016/54.html 15/21