03/02/2020 CG v Facebook Ireland Ltd & Anor [2016] NICA 54 (21 December 2016) not consider that the correspondence raised any question of privacy in respect of the material published. [70] Mr Tomlinson submitted that the burden of proof that the first appellant did not have actual knowledge or sufficient knowledge of facts or circumstances lay on the first appellant. The answer in our view lies in the structure of the 2002 Regulations which not alone provide the test in Regulation 19 but also provide a mechanism for the transmission of information through Regulations 6 and 22. In our view it is for the claimant to adduce prima facie evidence that the ISS provider has actual knowledge of relevant facts or information before the provider is fixed with the obligation to prove that it did not. The correspondence on behalf of the respondent in respect of the second appellant’'s page relied on misconceived causes of action and declined to advance any detailed analysis of the materials to support a claim of unlawful disclosure of private information. The first appellant was not in a position to conduct that exercise on its own. For the reasons given we do not consider that in the case of the second appellant’'s profile page and postings such prima facie evidence was established. [71] The first profile page posted by RS included reference to the offences which he had committed, the photograph of the respondent and a reference to the general area in which he had lived and that in which he was then believed to be living. The letter of claim dated 15 November 2013 complained about the photograph and a number of threatening and abusive comments and alleged defamation and interference with the right to life. None of the comments of which complaint was made referred to the area in which the respondent was living. No separate complaint was made about the identification of the area in which the respondent was living nor was there any reference to the tort of misuse of private information. The respondent’'s solicitors were asked to identify any offending URL by return of post. By letter of 26 November 2013 the solicitors for RS referred to the identification of the general area in which the respondent was living. They noted that the PSNI had called at the respondent’'s home to advise him that his life was under threat from loyalist paramilitaries. In response the solicitors were again asked by return to specify any offending URL to enable the first appellant to locate it. They eventually did so on 3/4 December and the site was taken down the following day. [72] Although there was no complaint of misuse of private information we consider that the notification on 26 November 2013 was sufficient to establish knowledge of facts and circumstances which made it apparent that the material published was private information. The references to the location where the respondent was living were repeated on a number of occasions and raised as an obvious matter of concern in these circumstances. The proper operation of the notice and take down procedure should have caused Facebook to respond. They were on notice of the risk from the additional information about the location of his residence. They had the location of the page from the correspondence of 13 November 2013. They were not entitled to close their eyes to the information on the respondent’'s address contained within the page and comments. Facebook was obliged to act as a diligent economic operator (See L’'Oréal SA v eBay International [2012] Bus LR 1369). We conclude, therefore, that the first appellant had knowledge of facts and circumstances from 26 November 2013 from which it should have been apparent that private information was being disclosed. The onus then lay on Facebook to demonstrate that it acted expeditiously to take the information down. It did not seek to do so. Facebook is accordingly liable in misuse of private information from 26 November 2013 until the information was removed on 4/5 December 2013. [73] After the page was taken down the photograph was reposted on 23 December but again the complaint related to defamation and right to life. No complaint about the privacy of the information was made. We do not accept that the evidence establishes that Facebook ought to have known of any misuse of private information as a result of that posting. Data protection [74] The relevant jurisdictional extent of the 1998 Act is set out in section 5: “"5. - (1) Except as otherwise provided… this Act applies to a data controller in respect of any data only ifwww.bailii.org/nie/cases/NICA/2016/54.html 16/21