03/02/2020 CG v Facebook Ireland Ltd & Anor [2016] NICA 54 (21 December 2016) c) by virtue of those letters combined with some elementary investigation of the profile/page and/or the internet.”" We have already drawn attention to the manner in which the learned trial judge used the XY litigation in the preceding paragraph as a source of notice but the last of the three matters referred to imposes an obligation of investigation on Facebook of materials other than those of which it would have been aware. The judge concluded, however, that by looking at the postings with the knowledge of the XY litigation Facebook would have been aware of facts or circumstances from which it would have been apparent to it that the activity or information was plainly unlawful being misuse of private information and harassment of the respondent. We will come back to that conclusion. [61] The judge returned to that issue at paragraph [100] in which he stated that both of the appellants knew or ought to have known that the content of the profile page, Predators 2, was oppressive and unreasonable and amounted to harassment of the respondent. Mr White again criticised this passage as indicating that the learned trial judge relied upon constructive rather than actual knowledge of relevant facts, requiring, as it did, Facebook to interrogate all of the postings generated by the profile page. [62] We are satisfied that there is substance in these submissions. The e-Commerce Directive and the implementing 2002 Regulations seek to strike a balance between two competing principles. On one hand the freedom to exchange information has revolutionised our social engagement and the manner in which we conduct our commercial and working lives. Any restriction on that freedom may impact on our participation in the benefits of the information society. Given the quantities of information generated the legislative steer is that monitoring is not an option. In contrast to this public interest there is a need to ensure the protection of personal autonomy and dignity. The Regulations seek to achieve that through a notice and take down procedure. The issue for us is, therefore, whether Facebook had actual knowledge of the misuse of private information which we have identified or knowledge of facts and circumstances which made it apparent that the publication of the information was private. The task would, of course, have been different if there had been a viable claim in harassment made against Facebook. [63] In respect of McCloskey’'s page the first piece of information that the judge relied upon was the XY litigation. There was no allegation of misuse of private information relevant to the making of the interim order in that case. It was a case of harassment. The judge concluded that the existence of the XY litigation was itself sufficient to fix Facebook with actual knowledge of unlawful disclosure of information on Predators 2 or awareness of facts and circumstances from which it would have been apparent that the publication of the information constituted misuse of private information. In our view such a liability could only arise if Facebook was subject to a monitoring obligation which disclosed the publication of information in respect of which there was a reasonable expectation of privacy. Even if the judge was entitled to conclude that the existence of the XY litigation was a fact or circumstance which made apparent to Facebook the propensity of the creator of that page, McCloskey, to harass those convicted of sexual offences that did not fix Facebook with knowledge about the publication of private information concerning the respondent. The furthest that the respondent can put the matter is that the XY litigation included reference to the Predators 2 page operated by McCloskey but it did not include any reference to the respondent, nor was any Order made in respect of Predator 2 in the XY litigation. We do not accept that the XY litigation made it apparent to Facebook that the disclosure of information was unlawful on grounds of privacy. [64] The second piece of information relied upon by the judge was the correspondence. The letter of claim to the first appellant on 26 April 2013 enclosed 13 pages of downloaded material which it was alleged was defamatory and put the respondent''s life at immediate risk. The letter provided the URL for the Predators 2 page and for McCloskey’'s profile page. It did not identify the URL of any specific comment posted on the page. It did not identify any claim based on misuse of private information or harassment. It did not refer to the XY litigation or the profile page the subject of that litigation. It is common case that the claims based on defamation and breach of Article 2 of the ECHR were both entirely misconceived. The posts were plainly not defamatory because they were true and since Facebook is not a public authority it owed no Article 2 duty under the Convention. www.bailii.org/nie/cases/NICA/2016/54.html 14/21