03/02/2020
J20 v Facebook Ireland Ltd [2016] NIQB 98 (20 December 2016)
relationship with others. Where that relationship is that of an intimate partnership or is a
parent/child relationship the impact of what happens in respect of one of the parties has
clear repercussions and consequences in respect of the relationship generally. In Patton v
UK [1991] 3 EHRR 48 the Commission accepted that the applicant as a potential father
was so closely effected by the termination of his wife's pregnancy that he might claim to
be a victim (within the meaning of Article 25 of the Convention) or the legislation he
sought to impugn. In earlier commission decisions in X v Belgium [1970] and Mekrane v
UK [1973] it concluded that the widow and children of persons against whom allegedly
impermissible actions have been taken fell to be considered victims themselves. In the case
of YF's Application [2004] 39 EHRR 34 the European Court of Human Rights in an
admissibility decision considered that it was open to a husband to raise a complaint
concerning allegations by his wife of violations of the Convention, in that case an enforced
gynaecological examination.
(20) Accordingly, the fact that divulging of private information and material in relation to
the partner and the child of the appellant may have entitled them to pursue their own claim
for remedy does not mean that the appellant himself does not have a claim. The fact that
the impact of a breach of privacy may be greater in respect of the other parties in the
relationship would be reflected in the assessment of any compensatory damages but that
does not mean that in the present proceedings the appellant has no cause of action arising
out of unjustifiable publication of private information in respect of his private
relationships. Furthermore the fact that the appellant has been accused of criminal actions
or a crime does not curtail the scope of the protection available under Article 8(c) Sciacca
v Italy (Application No 50774-99 [2005] 43 EHRR 400). We conclude that the Judge was
correct in concluding that at paragraph [30] of his judgment that the publication of details
of family members of a particular person may engage the Article 8 rights of that person."
[34] In this case the plaintiff said that he was "disgusted" by the reference to his children. He said that
this has had an impact on his relationship with them and he was unable to attend two of their weddings.
It may well be that the background to the history of his relationship with these children is complicated
and I note that the postings concerning the children seem to come from the family of the mother of the
children. Nonetheless, I have come to the clear view that in respect of the religion of his children he did
have a reasonable expectation of privacy. As to whether or not the interference with that expectation
constitutes a misuse of private information or whether the publication was proportionate I fail to see
how this can be justified. Any fair or objective reading of the references to the children could not
possibly be justified even in the context of his participation in Loyalist protests. The reference to these
children – who can be identified by reason of the identification of the mother of the plaintiff's expartner - in my view does constitute a misuse of private information.
The Reference to the Plaintiff as "a tout"
[35] I am troubled by the assertion in one of the postings that the plaintiff was "a tout". The suggestion
that a person is an informer is one that has particular resonance in this jurisdiction. A person so
identified may be placed in danger from paramilitaries and may be ostracised from his community. As
a matter of principle it should not be regarded as defamatory given that a member of the public should
not be criticised for providing information of value to the authorities. In his opening Mr Lavery QC on
behalf of the plaintiff submitted that calling a person "a tout" can never be justified, true or not.
[36] This issue was considered by the Court of Appeal in the case of AB v Sunday Newspapers [2014]
NICA 58.
[37] That case concerned an application for an interim injunction preventing the defendant from
publishing certain material concerning the plaintiff including the alleged provision by him of
information to state authorities. The plaintiff was described as a "dissident tout" who "supplied the
police with bugging devices and audio tapes planted in cars provided to dissident leaders".
[38] In the appeal the appellant placed considerable emphasis upon the assertion in one of the articles
complained about that the appellant was a confidential human intelligence source for the PSNI in
respect of dissident republicans. The appellant argued that the relationship between the police and an
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