03/02/2020 J20 v Facebook Ireland Ltd [2016] NIQB 98 (20 December 2016) [20] In relation to the first question the plaintiff identifies the use of his image by photographs, his name, the fact that he was standing in front of a flag with "Lower Shankill" written on the flag and references to his three children who are identified as Catholics. [21] In respect of each of these matters the defendant says that the plaintiff does not have a reasonable expectation of privacy. Whether this is so is a question of fact for the court. The question is a broad one which requires the court to take account of all the circumstances of the case. [22] In this case the defendant says that the plaintiff is someone actively involved in the parades which were organised in opposition to the Belfast City Council decision to restrict the flying of the Union flag. In his evidence the plaintiff indicated that he attended 4 or 5 protests. The defendant challenged the extent of his involvement in the protests and in particular referred to the plaintiff's conviction in February 2014 for disorderly behaviour arising from his conduct during Loyalist protests at a city park in August 2013 (a matter of weeks before the postings about which the plaintiff complains) over the attendance by the Lord Mayor who was a member of Sinn Fein. This conviction was reported in the local news media where the plaintiff was named and reference was made to his age and actual address in Belfast. It was also pointed out that at that stage he was already serving a prison term for a separate offence. The reporting also quotes the Judge who convicted the plaintiff as making remarks along the lines that what the plaintiff said to police was said to stir up and agitate the crowd, and that abuse towards the Lord Mayor was in general terms abuse of a sectarian nature and motivated by hate. [23] When questioned about this matter the plaintiff maintained his innocence and argued that he had been innocently caught up in the matter. He indicated that he had attended the park with his two grandchildren and he was not involved in the protest and only became involved when an officer tried to assault him. He was also pressed about references in his medical notes and records to the effect that he had been in prison for 12 or 13 years during which time he had contact with paramilitaries. His evidence about that was that he had been "let into the paramilitary wings" to help make the numbers up. In cross-examination it was also established that the plaintiff had a previous conviction for throwing a stone in the context of civil disorder arising from a protest in the past and also that he had been struck by a plastic bullet again in the context of civil disorder. [24] The effect of this context according to the defendant is that the plaintiff does not enjoy a reasonable expectation of privacy in relation to his identity in particular. I was referred to the decision in Jerusalem v Austria [2003] 37 EHRR 25, where the European Court of Human Rights stated at (38), that private individuals lay themselves open to scrutiny when they entered the arena of public debate. The relevant associations in that case participated in public discussions and co-operated with a political party, and accordingly were active in the public domain and therefore ought to have shown a higher degree of tolerance to criticism. In this case the plaintiff accepts that he was part of the flag protests and was engaged in political demonstrations in a public place. It is a matter of record that these protests on occasions descended into public disorder and sectarian rioting. Not only was the plaintiff engaged in public demonstrations but he was actually convicted of an offence in the context of a demonstration by Loyalists against the Lord Mayor because of the flag issue. Thus those who enter into the affray must have "broad shoulders" when they attract criticism even of the type contained in the postings in this case. [25] In terms of the evidence I was not impressed by the plaintiff. I believe that he understated the extent of his participation in the flag protests and in particular understated his involvement in the incident which led to his conviction in February 2014. I came to the view that he was someone actively engaged in these protests and was willing to engage and did engage in acts of public disorder both in the past and in particular during the Lord Mayor's visit to the park. This impacts on the evidence he gave about the photographs themselves. In relation to the photographs showing him standing in front of the Union Jack he in essence said that this was a "mocked up photograph" and that he had no idea where it came from. Having heard his evidence I have come to the conclusion that this was indeed a photograph taken in a public place and in the context of the flag disputes. The plaintiff said that he had no memory of the photograph in which he is shown standing beside a prominent Unionist politician and another person but again I have come to the conclusion that this was a photograph taken at a public place on a public occasion. In respect of the photograph in which he is shown holding the fish I accept his evidence that this was taken by a friend although it appears to have been in a public car park. www.bailii.org/nie/cases/NIHC/QB/2016/98.html 6/17