03/02/2020 J20 v Facebook Ireland Ltd [2016] NIQB 98 (20 December 2016) It has never been suggested generally that the scope of the civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognise, in life one has to put up with a certain amount of annoyance; things have got to be fairly severe before the law, civil or criminal will intervene …" [14] Referring to Ferguson Morris Kay LJ in Veakins v Kier Ltd [2009] EWCA Civ 1288 said that – "Leaving aside the fact that Jacob LJ in Ferguson variously described the necessary level of conduct as 'grave' and 'very severe', it seems to me that since Majrowski, courts have been enjoined to consider whether the conduct complained of is 'oppressive and unacceptable' as opposed to merely unattractive, unreasonable or regrettable. The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which 'would sustain criminal liability'." [15] The test for harassment was considered by our Court of Appeal in King v Sunday Newspaper Ltd [2011] NICA 8. Girvan LJ dealt with the matter in this way – "(34) In Dowson & Ors v Chief Constable of Northumbria Police [2010] EWHC 2612, … Simon J at 142 usefully summarised what must be proved as a matter of law in order for a claim of harassment to succeed; '(1) There must be conduct which occurs on at least two occasions (2) which is targeted at the claimant, (3) which is calculated in an objective sense to cause alarm or distress, and (4) which is objectively judged to be oppressive and unacceptable, (5) what is oppressive and unacceptable may depend on the social or working context in which the conduct occurs. (6) A line is to be drawn between conduct which is unattractive and unreasonable and conduct which has been described in various ways: 'torment' of the victim of an order which would sustain criminal liability'." [16] Turning to the facts of this case the conduct about which the plaintiff complains, namely the postings, occurs on at least two occasions. It is targeted at the plaintiff. Objectively the postings are calculated to cause the plaintiff distress. The real issue is whether or not objectively judged they are oppressive and unacceptable. In terms of the photographs there is nothing which would meet this test. The harassment if it exists arises from the text accompanying the photographs which were posted. The plaintiff is described as "a sectarian parade organiser", a "loyalist bigot", "a scum woman beating snake", "the biggest coward I have had the misfortune to meet" and "a woman beater". There is an allegation that he does not bother with his children because they are Catholic and an inference that he is "a tout". Clearly these comments are offensive and distasteful. They are more than what might be described as tasteless humour. However, in my view they do not cross the boundary between what is unattractive and unreasonable as opposed to what is oppressive and unacceptable. It is certainly not conduct of an order which would sustain criminal liability although I accept that the plaintiff does not have to establish that a criminal prosecution would be justified to sustain liability. These comments can be easily contrasted with the comments which form the subject matter of the judgment in CG v Facebook Ireland Ltd and McCloskey. In that case there were 150 comments concerning the plaintiff which included violent language specifically targeting the plaintiff and his home. On the facts of this case I have come to the conclusion that the postings which form the subject matter of this claim would be insufficient to establish a tort of harassment. www.bailii.org/nie/cases/NIHC/QB/2016/98.html 4/17