05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) [81] Schedule 3 of the Act sets out the conditions for processing sensitive personal data. Compensation is available under Section 13 and this includes compensation for distress according to the most recent authority of Judith Vidal-Haulage LL v Google Inc [2015] EWCA Civ 311 and in particular para [105]. [82] There can be no doubt that the information contained in URL2 constituted sensitive personal data: see Section 2(b) and (g) of the Data Protection Act 1998. The conditions relevant for purposes of processing the sensitive personal data are set out in Schedule 3. It may be that Google will seek to argue that the plaintiff has given his complicit consent to the processing of the personal data: see paragraph [1]. It may be that it will argue at paragraph [5] that "the information contained in the personal data has been made public as a result of steps already taken by the data subject". However whether or not Google can persuade the court that no liability arises from the processing of this sensitive personal data will have to await a full hearing. The facts as presently put before the court would suggest that Google will not find it easy to defend this claim if it is found to be a data controller. Accordingly, as matters presently stand, I consider that the plaintiff has a good arguable case in respect of the publication of his sensitive personal data on URL2 by Google as a data controller. If successful, then the court on the present authorities is able to award damages for upset and stress. [83] The plaintiff has persuaded me that there is a good arguable case that the plaintiff has suffered damage within this jurisdiction and/or particularly damage has resulted from an act committed within this jurisdiction, namely upset and distress. But the writ of summons did not plead a claim under the 1998 Act. There was material non-disclosure. I also accept that in an application for leave the benefit of any doubt should be given to the foreign national or company. However I am not persuaded that the failures are fatal to the plaintiff here because there can be no doubt that this cause of action was discussed with Stephens J and that the Judge proceeded on the basis that it formed part of the application for service out. Accordingly, I consider that leave should be granted in respect of the posting of URL2 on YouTube. For the reasons given I would not grant leave in respect URL3 and URL4. In any event, the evidence before me was not sufficient to satisfy me that there was a good arguable case in respect of this gateway. [84] Stephens J did not grant leave in respect of URLs 3 and 4 for the reasons which I have set out. There was material non-disclosure, which as I have said, is fatal. In any event I do not consider that in the absence of evidence that these videos were downloaded and published in Northern Ireland, that the test under Order 11 Rule 1 has been satisfied in respect of breaches of the Data Protection Act 1998 so far as URL3 and URL4 are concerned. (iii) Harassment [85] Article 3(1) of the Protection from Harassment (NI) Order 1997 ("the 1997 Order") provides: "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." Article 3(2) states: "For the purpose 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." Harassment is not defined. In Drew Robert King v Sunday Newspapers Limited [2011] NICA 8 the Court of Appeal made it clear that a plaintiff must show that "the conduct was oppressive and unreasonable". In that case it concluded that: file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 22/26