03/02/2020 J20 v Facebook Ireland Ltd [2016] NIQB 98 (20 December 2016) seriousness but on the authority of AB I have come to the conclusion that referring to the plaintiff as a "tout" does constitute a misuse of private information. [43] The issue therefore is whether or not the defendant is liable for this misuse of private information that I have identified. Is the defendant liable? [44] The defendant submits that even if the plaintiff is able to establish any of the underlying causes of action he asserts (and I have found that he has) in any event as an Information Society Service Provider ("ISSP"), Facebook is not liable for damages because it can avail itself of the defence provided by Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002. [45] Directive 2000/31/EC at Article 15 provides that: "Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. 2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their services with whom they have storage agreements." [46] Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 provides as follows: "Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where – (a) the service provider – (i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, it is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or (ii) upon obtaining such knowledge or awareness acts expeditiously to remove or disable access to the information, and (b) the recipient of the service was not acting under the authority or control of the service provider." [47] Regulation 22 provides that, in determining whether the service provider has actual knowledge, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, among other things, have regard to whether the service provider has received a notice through a specified email address and the extent to which any such notice includes: (a) the full name and address of the sender of the notice; (b) details of the location of the information; and (c) details of the unlawful nature of the activity or information in question. [48] Having considered these regulations and the well-established line of authority in relation to the liability of ISSPs for publications by third parties in the law of libel I conclude that there can be no www.bailii.org/nie/cases/NIHC/QB/2016/98.html 10/17