03/02/2020 CG v Facebook Ireland Ltd & Anor [2016] NICA 54 (21 December 2016) transmit or store. Nor is there a general obligation actively to seek facts or circumstances indicating illegal activity. [25] Under the Electronic Commerce (EC Directive) Regulations 2002 (“"the 2002 Regulations”") an ISS will not be liable for damages where it does not have actual knowledge of unlawful activity or information and is not aware of facts and circumstances from which it would have been apparent to the service provider that the activity or information was unlawful. If it obtained such knowledge then it will not be liable if it acts expeditiously to remove or disable access to such information. The learned trial judge rejected Facebook’'s contention that there was a requirement to give notice in a particular manner. He concluded that actual knowledge of the unlawful activity was acquired by virtue of the XY litigation, that litigation combined with the letters sent to Facebook and its solicitors and by virtue of those letters combined with some elementary investigation of the profile page and/or internet. Neither the e-Commerce Directive nor the 2002 Regulations provided any defence to the claim of misuse of private information. [26] In relation to the claim under the Data Protection Act 1998 the issue was whether Facebook was established in the United Kingdom. The learned trial judge noted that this issue only arose during the trial. Discovery was not given in relation to it and no application for discovery or interrogatories was brought on behalf of the respondent. The issue addressed by the learned trial judge was whether the first appellant by virtue of its relationship with Facebook UK Ltd, set out at 3(g) above, maintained an office, branch or agency through which it carried on activity in the United Kingdom. In the absence of relevant discovery the learned trial judge concluded that on balance the respondent had not established this proposition. The submissions of the parties [27] Mr White submitted that the principal content complained of by the respondent consisted of information which was already in the public domain. It was contained in the press article reporting the respondent''s conviction for child sex offences. Subsequent comments on the article consisted mainly of commentary and public opinion on the matter. The learned trial judge erred in relying upon the categories of sensitive personal data in the Data Protection Act 1998. Mr White accepted that the publication of information in relation to the present address of the respondent was private information but submitted that the indication only of a general area in which the respondent resided was insufficient. Neither individually nor cumulatively was there a reasonable expectation of privacy in relation to any of the information. [28] Even if Facebook’'s non-removal of the content amounted to the tort of misuse of private information the learned trial judge ought to have found that it was exempt from legal liability by virtue of Regulation 19 of the 2002 Regulations. Past complaints relating to content on another profile page concerning another individual cannot fix an ISS provider with actual knowledge of unlawful activity or information in relation to different content subsequently posted about a different individual. This would amount to an impermissible proactive monitoring obligation. In addition, the notification letters received by Facebook were insufficiently precise as to the location of the allegedly unlawful content and failed to identify the reasons why the content was said to be unlawful. The letters did not, therefore, fix Facebook with actual knowledge of unlawful content and it was entitled to the exemption from liability provided by the 2002 Regulations. [29] Mr Tomlinson submitted that the determination of the reasonable expectation of privacy in this case required an examination of the reasonable expectation that there would be no interference with the broader right of personal autonomy. That was why the categories of sensitive personal data in section 2 of the Data Protection Act 1998 were material. In considering that question the court had to take into account all of the circumstances in the case including those set out in Murray v Express Newspapers plc. [30] This was an intrusion case. Special considerations attach to photographs in the field of privacy. As a means of invading privacy a photograph is particularly intrusive. Privacy can be invaded by further publication of information or photographs already disclosed to the public (see Lord Nicholls at [255] in OBG v Allan [2008] 1 AC 1). In any event it is clear that information which is in the www.bailii.org/nie/cases/NICA/2016/54.html 7/21