03/02/2020 CG v Facebook Ireland Ltd & Anor [2016] NICA 54 (21 December 2016) and intrusion. There was no dispute between the parties that this was essentially a case about intrusion. The disclosure or repetition of information could only engage the tort if there was a reasonable expectation of privacy in respect of that information (see In re JR38 [2015] UKSC 42). The question of whether there has been a reasonable expectation of privacy “"is a broad one, which takes account of all the circumstances of the case”" (see Murray v Express Newspapers). The respondent placed particular emphasis on the context in this case. We accept that the context can be important but it is not necessarily decisive as to whether a reasonable expectation of privacy has been established. We do not accept any suggestion that because there is some coincidence in the values which the tort and the 1997 Order seek to protect that they are inevitably interchangeable in that breach of one leads to the conclusion that there has been breach of the other. [42] The determination of whether the repetition or disclosure of private information achieves the level of intrusion protected by Article 8 of the Convention is inevitably fact sensitive. In conducting that exercise we accept that the context can include the disclosure or repetition of information which itself is not protected but which together with other private information can lead to unlawful intrusion. [43] In this case the learned trial judge concluded that each piece of information set out at paragraph [21] above was private and further that the cumulative disclosure of the information constituted an unlawful intrusion into the respondent’'s personal autonomy. Mr White attacked this conclusion particularly in relation to the respondent''s convictions. He relied upon the observations of the majority of the Supreme Court in R(T) v Chief Constable of Greater Manchester Police and Others [2014] UKSC 35 stating that the point at which a conviction recedes into the past and becomes part of a person''s private life will usually be the point at which it becomes spent under the Rehabilitation of Offenders Act 1974. The respondent is now serving the licence period of his sentence and the conviction has not, therefore, become spent. The length of the sentence means that the conviction will never become spent. Although R(T) was decided shortly before the hearing it does not appear that it was brought to the attention of the learned trial judge as it is not mentioned in the judgment. [44] We agree that with the passage of time the protection of an offender by prohibiting the disclosure of previous convictions may be such as to outweigh the interests of open justice. In principle, however, the public has a right to know about such convictions. Information about what has happened in open court can be freely communicated by members of the public unless there is some compelling reason to prevent it. The open justice principle is fundamental to securing public confidence in the administration of justice and is particularly important in the criminal context where the public is concerned with the punishment and rehabilitation of the offender and the extent of the risk of harm he may present. This is, therefore, a factor of very significant weight which can only be outweighed by the interest of the individual in freedom from intrusion in the most compelling circumstances. [45] The learned trial judge relied upon the definition of sensitive personal data in the 1998 Act to determine whether information was private. We consider that considerable caution should be exercised before reading across the matters set out in that definition as though they were items of private information. The 1998 Act regulates those who are engaged in the control and distribution of organised information about members of the public. The fact that the information is regulated for that purpose does not necessarily make it private. The test remains whether there is a reasonable expectation of privacy. [46] In his evidence the respondent indicated that he had to live with name calling because that was part of his conviction. His concern was not with the publication of his name and the background to his convictions but with the attempts to establish where he lived and the risk of harm as a result of that. We do not consider that the principle of open justice had to be qualified in this case by prohibiting the republication of the offender’'s name and the details of his convictions alone. There was no evidence that on its own publication of that material raised any material issue of concern. Despite the reporting of these matters to the police no risks from such publication were expressed by them. www.bailii.org/nie/cases/NICA/2016/54.html 10/21