05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) (d) The plaintiff has suffered damage for an act committed within this jurisdiction and further the plaintiff has suffered damage in this jurisdiction from that act. (e) The availability of the video on YouTube over a period of days constituted a course of conduct. [89] Therefore on the evidence presently available, and I stress presently, I consider that there is a good arguable case in respect of URL2: (a) A tort has been committed. (b) Damage has been sustained within this jurisdiction. (c) Damage has resulted from an act committed within this jurisdiction. [90] As I have emphasised this conclusion is necessarily a provisional one. The court only has access to some of the evidence. It retains and must retain an open mind. Google still remain able to adduce evidence that, for example it did not have the necessary actual or constructive knowledge of the harassment within that 23 days period. This will involve scrutiny of the measures taken by Google to investigate the complaints when they were first made which cannot adequately be conducted by affidavit. [91] I am not persuaded on the evidence put before the court that leaving aside the issue of material non-disclosure, that URL3 and URL4 constituted harassment under the 1997 Order given the absence of evidence as to the downloading of these videos in Northern Ireland, and Google's knowledge and the nature of their contents. (iv) Malicious Falsehood [92] The plaintiff has abandoned any attempt to rely on the tort of malicious falsehood. (v) Breach of the Data Protection Directive and Breach of the EU Charter of Fundamental Rights [93] I do not consider that leave was given for either of these grounds. However if it was then it should not have been. I do propose to make my views clear. It is well established that EU Directives do not provide rights or impose obligations as against private individuals; see Marshall v Southampton Area Health Authority [1986] 1 QB 401 at [49]. While a Directive may not be relied upon as a basis for a claim against any individual, a domestic court should construe domestic legislation in a field covered by EU law so as to accord with the interpretation of a directive, provided this can be done without distorting the meaning of the domestic legislation: see Webb v EMO Cargo Limited [1993] 1 WLR 49 at 59 E-G. Article 51 of the EU Charter of Fundamental Rights does not confer or establish any rights as against individuals. It does not give rise to a claim for damage for "breach of EU law". The court at the leave application was told that this was included as a "belt and braces" approach. There was a failure to draw to the judge's express attention the difficulty in relying upon either a breach of the Directive or the Charter as a cause of action. I have no hesitation in concluding that the plaintiff has failed to satisfy the court that it is a good arguable case to be admitted through the tort gateway. (vi) VPN's, Proxy Servers, Search Engines and Captions [94] There was much discussion about whether citizens of Northern Ireland could view videos which had been blocked on YouTube to users in the United Kingdom by use of virtual private networks (VPN) and/or proxy servers. However, this matter can be dealt with briefly. No credible evidence has been offered by the plaintiff to demonstrate that any Northern Ireland citizen, never mind substantial numbers of Northern Ireland citizens, have used a VPN and/or a proxy server to download any of the URLs under consideration. There is no evidence that a tort was committed using a VPN or a proxy server in Northern Ireland or that any damage has been suffered by the plaintiff because any of the videos and particular URL2 has been downloaded using such a device in Northern Ireland. More importantly these matters were not canvassed before Stephens J. No explanation has been offered for this serious omission. Prima facie the failure to raise it on an ex parte application amounts to material file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 24/26