03/02/2020 CG v Facebook Ireland Ltd & Anor [2016] NICA 54 (21 December 2016) [18] The learned trial judge also noted the evidence about the public protection arrangements in Northern Ireland, the primary purpose of which is the assessment and management of risk from sex offenders to help protect the public from serious harm. The key ingredients to stability for an offender who is being rehabilitated into the community are a home, employment and a circle of family and friends. Adverse publicity combined with precise identification of the offender''s whereabouts substantially disrupts those key ingredients and thereby increases the risk of reoffending. The learned trial judge’'s decision [19] The learned trial judge first addressed McCloskey’'s liability. He set out the detailed evidence supporting his conclusion that McCloskey set up and operated his profile page to destroy the family life of sex offenders, to expose them to total humiliation and vilification, drive them from their homes and expose them to the risk of serious harm. In addition to the respondent other similar offenders were identified on his profile page. The learned trial judge considered that McCloskey was totally indifferent to the lawfulness of his conduct and was motivated by a deep hatred of sex offenders. He concluded that his conduct amounted to harassment of the respondent. [20] The case made against Facebook was based on misuse of private information. Private information is that in respect of which there is a reasonable expectation of privacy. The test was objective and had to be applied broadly, so that the court would, in taking account of all the circumstances, consider the individual’'s attributes, the nature of the activity in which he had been involved, the place where it had happened and the nature and purpose of the intrusion ( JR38 [2015] UKSC 42 approving Murray v Express Newspapers [2008] EWCA Civ 446 at paragraph [36]). Although he adopted this approach by reference to his previous decision in Kenneth Callaghan v Independent News and Media [2009] NIQB 1 the learned trial judge went on in this case to accept the submission by counsel for the respondent that the Data Protection Act 1998 provided a useful touchstone as to what information was deemed to be private for the purpose of that tort. He found support for that approach in the judgment of Tugendhat J in Green Corns Ltd v Claverley Group Limited [2005] EWHC 958. [21] He concluded that any photograph of the respondent which could be used to identify exactly where he lived, his name if used in conjunction with other information which might identify where he lived, his present address or any description of the area in which he previously lived if that information could be used to identify him, his criminal convictions and the risk he posed to the public except insofar as they should be disclosed in accordance with the public protection arrangements and any information about his family members were all private information both individually and in combination. [22] He further noted that Facebook did not call any evidence to establish that it did not have the capacity, resources or knowledge to look for or to assess material in relation to McCloskey. He considered that Facebook was put on notice by the XY litigation of the whole nature of McCloskey’'s activities and the degree and nature of his motivation against sex offenders in Northern Ireland. He also inferred that the Facebook knew or ought to have known of the profile page Predators 2 given that any simple searches by it would have revealed the new profile page with an almost identical name and with identical purposes. He considered that Facebook had the capacity, resources and knowledge to look for and to assess material in relation to the respondent on McCloskey’'s profile page without receiving any letter of claim or any complaint from him. [23] Although the letters complaining about the posts alleged defamation and an immediate risk to the respondent’'s life the learned trial judge concluded that it was apparent to anyone looking at the posts that they ought to have been giving consideration to unlawfulness on the additional grounds of unlawful harassment, breach of article 3 ECHR and unlawful misuse of private information. It was common case that the posts could not constitute defamation and the claim based on the positive duty under Article 2 ECHR was properly dismissed. [24] The first appellant is an information society service (ISS) within the meaning of Directive 2000/31/EC (the e-Commerce Directive). Article 15 of the e-Commerce Directive provides that a general obligation shall not be imposed on an ISS provider to monitor the information which they www.bailii.org/nie/cases/NICA/2016/54.html 6/21