03/02/2020 J20 v Facebook Ireland Ltd [2016] NIQB 98 (20 December 2016) [17] Even if I am wrong about this there is of course the separate issue as to whether or not the fact that the defendant hosted these particular postings is sufficient to establish that the defendant has pursued "a course of conduct". I note that the Northern Ireland Harassment Order does not have a similar provision to Section 7(3A) of the Protection from Harassment Act 1997 in England and Wales which extends "conduct" to aiding, abetting, counselling or procuring another's conduct. If the defendant has engaged in a "course of conduct" in this case then it must arise from its decision not to remove the postings when they were drawn to its attention. I deal with this issue in the context of the Regulation 19 defence later in the judgment. When the matter was drawn to their attention the question is in my view whether it ought to have known that by maintaining the postings and on the basis of the information available to it judged objectively it should have known that this amounted to harassment under the Order. Whilst I do not agree with the defendant's assessment that the postings did not amount to "annoying and distasteful humour" I have come to the conclusion that the postings did not meet the test for a course of conduct amounting to harassment under the 1997 Order. Misuse of Private Information [18] In terms of the applicable law in respect of this tort I cannot improve on the summary provided by Stephens J in his judgment in Callaghan v Independent News and Media Limited [2009] NIQB 1 at paragraph [24] where he says – "(a) The Human Rights Act. The Human Rights Act 1998 requires the values enshrined in the European Convention on Human Rights to be taken into account. The foundation of the jurisdiction to restrain the publicity is now derived from Convention rights of the European Convention on Human Rights in Re S (a child) [2005] 1 AC 593 at paragraph (23). The relevant values in the actions before me are expressed in Articles 2, 3, 8 and 10 of the Convention. The Convention 'values are as much applicable in disputes between individuals or between an individual and non-Government body such as a newspaper, as they are in disputes between individuals and a public authority' see paragraph (9) of Mosley v Newsgroup Newspapers Ltd. (b) Expectation of privacy. 'The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence', see paragraph (7) of Mosley v Newsgroup Newspapers Ltd. The question as to whether there is a reasonable expectation of privacy is an objective question and a question of fact. The reasonable expectation is that of the person who is affected by the publicity. The question was defined by Lord Hope in Campbell v MGN [2004] UKHL 22 at paragraph [99] as follows:'The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced the same publicity.' The question whether there is a reasonable expectation of privacy 'is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place in which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher' see Murray v Express Newspapers [2008] EWCA Civ 446 at paragraph 36." [19] What is the information alleged by the plaintiff to be private in this action? In respect of that information had the plaintiff a "reasonable expectation of privacy"? If the answer to these questions is "yes" were the "postings" justified or more accurately, proportionate? For the purposes of this discussion I leave aside for a moment the issue as to whether or not in fact any material complained of by the plaintiff was "posted" by the defendant. In this context "posted" has a similar meaning as "published" in a defamation action. www.bailii.org/nie/cases/NIHC/QB/2016/98.html 5/17