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03/02/2020 CG v Facebook Ireland Ltd & Anor [2016] NICA 54 (21 December 2016) order that the ﬁrst appellant should terminate the Facebook proﬁle page ""Keeping Our Kids Safe from Predators 2"" (“"Predators 2”") and prohibited McCloskey from harassing, pestering or molesting the respondent whether by publishing, distributing or transmitting any information relating to or on the website Facebook.com or otherwise howsoever. [2] The respondent cross appeals on the basis that Facebook should be held liable in respect of the three proﬁle pages and comments on the basis that by its pursuit of economic activity within the United Kingdom by operation of the Facebook social network and through the operation of an ofﬁce, branch and/or subsidiary it is a data controller under section 5 of the Data Protection Act 1998 (“"the 1998 Act”") in respect of personal data and sensitive personal data processed on the Facebook social network and is in breach of the 1998 Act. McCloskey did not pursue his appeal and accordingly it is dismissed. Both Facebook and the respondent lodged appeals against the level of damages but at the hearing neither pursued that issue. Mr White QC appeared with Mr Hopkins for Facebook and Mr Tomlinson QC appeared with Mr Girvan for the respondent. We are grateful to all counsel for their helpful oral and written submissions. Facebook [3] The corporate structure within which Facebook was established is set out at paragraph 90 of the judgment at ﬁrst instance: (a) Facebook Ireland Limited is a private limited company incorporated in the Republic of Ireland. (b) Facebook Ireland Limited is wholly owned by Facebook Ireland Holdings which is an unlimited company and does not ﬁle accounts. It is not possible to establish from publicly available information details of its trading and intergroup transactions. (c) Facebook Ireland Holdings is owned by Facebook International Holdings II (99%) which is registered in Ireland and by Facebook Cayman Holdings Limited III (1%) which is registered in the Cayman Islands. The Cayman Islands do not levy corporation tax. (d) In 2012 Facebook Ireland Limited paid €770.6m to Facebook Ireland Holdings for the right and licence to utilise the Facebook platform. (e) Facebook Ireland Limited is the data controller with respect to the personal data of users outside the US and Canada. (f) Facebook UK Limited is a private limited company incorporated in the UK. It is wholly owned by Facebook Global Holdings II LLC. It derives all of its income from providing marketing support services to Facebook Ireland Limited. It does not operate, host or control the Facebook service. It has ofﬁces in the United Kingdom. (g) A data processing agreement is in place between Facebook Ireland Limited and Facebook UK Limited under which Facebook UK Limited as “"data processor”" processes certain personal data on behalf of Facebook Ireland Limited as “"data controller”" in order to generate advertising revenue in the United Kingdom. [4] Stephens J described the operation of the Facebook website at paragraphs 18-21: “"[18] Facebook is a medium for the dissemination and acquisition of information available to anyone who can access it. Users can disseminate information by establishing independent dedicated pages for a broad range of purposes – for example, the creation of a personal proﬁle or as in this case the pursuit of a campaign. Other Facebook users can access the information on those pages and can then contribute to the page by posting material on it. For someone to post on Facebook they must themselves have a Facebook account. www.bailii.org/nie/cases/NICA/2016/54.html 2/21

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CG v. Facebook Ireland Ltd

Case Law

Country

United Kingdom

Country Location

Latitude: 52.32950805122076

Longitude: -1.4047851562500706

Country Location (Lié Case Law): United Kingdom

Decision Date: 21 déc. 2016

Case Status: In progress

Case Outcome (Procedural)

Affirmed in Part/Reversed in Part

Case Outcome (Disposition)

Monetary Damages/Fines

Keywords

Intermediary Liability
Internet Service Providers
Open Court Principle
Privacy

Judicial Body: Appellate Court

Case Number: [2016] NICA 54

Case Summary: The Northern Ireland Court of Appeal held Facebook and one of its users liable for "misuse of private information" since the user's posts disclosed a sex offender's photograph, name, address and previous offences. The case was brought by CG, who had been sentenced for indecent assault and gross indecency, against Facebook and Mr. McCloskey because personal information and threats to his safety had been posted on McCloskey’s Facebook page entitled "Keeping Our Kids Safe from Predators 2". In regard to disclosure of previous convictions, the Court noted the importance of open justice and the public's right to know about such convictions. However, it was held that considering the harassment context to which CG was subject, he had a "reasonable expectation of privacy" in relation to the cumulative disclosure of his personal details and his resulting exposure to potential acts of vigilantism. On the basis of the Google Spain case, the Court held that Facebook Ireland was a data controller and could therefore be held liable for failing to expeditiously respond to requests to take down the impugned information. Furthermore, the Court found that Facebook was not under an obligation to monitor information it transmits and stores, and therefore rejected the lower courts assertion that Facebook should have been aware of previous litigation against McCloskey and proactively removed the private information. Although Facebook was found liable, it was limited and the Court of Appeal in Northern Ireland took a detailed look at the notice that was given to Facebook to ensure that liability would only arise where Facebook had been provided with the substance of a claim in misuse of private information, and the identification of the unlawful content.

Case Significance: The decision establishes a binding or persuasive precedent within its jurisdiction.

Source Name and URL: Columbia Global Freedom of Expression

Documents principaux

CG v Facebook Ireland Ltd & Anor [2016] NICA 54 (21 December 2016).pdf
English
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