03/02/2020 J20 v Facebook Ireland Ltd [2016] NIQB 98 (20 December 2016) The Plaintiff's Causes of Action [9] The plaintiff confines his case to two causes of action namely harassment and misuse of private information. He does not rely on defamation, breach of the Data Protection Act 1998 or breach of the Communications Act 2003. Notwithstanding this I did give consideration as to whether or not the Data Protection Act was relevant in this case. It seems to me issues arise as to whether or not the Data Protection Act applies. An issue arises as to whether or not I am entitled to rely upon the definition of personal data in the 1998 Act to determine whether information was private. Finally, if the Data Protection Act does apply an issue arises as to whether or not the defendant is entitled to the protection of the E-Commerce Regulations against any claims for damages under the 1998 Act. Whilst I did not hear any arguments on this point I should indicate that my consideration of the matter is that it would not have impacted on the decision I have made in this case. [10] Whilst the defendant submits that it has a defence to both these causes of action by reason inter alia of the "safe harbour" defence provided by Regulation 19 of the Electronic Commerce (ECD) Regulations 2002 it further argues that on the facts of this case the plaintiff cannot establish a cause of action at all. The defence provided for an information society service provider such as the defendant only arises "if he otherwise would" be liable. Harassment [11] The tort of harassment is a statutory one. Article 3 of the Protection from Harassment (Northern Ireland) Order 1997 provides as follows – "Prohibition of harassment 3-(1) A person shall not pursue a course of conduct – (a) which amounts to harassment of another; and (b) which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this Article the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other." [12] Harassment contrary to the Order is rendered both a criminal offence and also a matter which exposes the perpetrator to civil liability. The creation of both criminal and civil liability by the statute is important in understanding the test to be applied in establishing a civil cause of action. In the case of Conn v Sunderland City Council [2007] EWCA Civ 1492 the Court of Appeal in England and Wales held that two incidents complained of by an employee in a claim against his employer could not constitute harassment for the purposes of the 1997 Act (which is the equivalent of the 1997 Order in this jurisdiction). The facts found in that case were that a foreman had lost his temper with employees including the plaintiff when they had refused to give him the names of other employees who had left the site at which they were working earlier. In the course of losing his temper he threatened to smash the window of the Portacabin with his fists and threatened to report the employees to the Personnel Department. In a second incident the same foreman lost his temper with the plaintiff and threatened to "give him a good hiding". It was held that this conduct could not constitute harassment because a civil claim could only arise as a remedy for conduct amounting to a breach of Section 1 of the Act, which by Section 2 would also amount to a criminal offence. What constituted the boundary between unattractive and unreasonable conduct; and oppressive and unacceptable conduct might well depend on the context in which the conduct occurred. The touchstone was whether the conduct was of such gravity as to justify the sanction of criminal law. [13] In the case Ferguson v British Gas Trading Ltd [2009] 3 All 304 Jacob LJ said – "I accept that the course of conduct must be grave before the offence or tort of harassment is proved … www.bailii.org/nie/cases/NIHC/QB/2016/98.html 3/17