Facebook found liable for failing to act promptly to protect paedophile from harassment and breach of privacy

In CG v. Facebook Ireland Ltd and Joseph McCloskey [2015] NIQB 11 the anonymised claimant was awarded £20,000 in damages and an injunction for misuse of private information and harassment.

The claimant is a convicted sex offender who bought the claims against Facebook and Mr Joseph McCloskey. Facebook, the first defendant, was the host and McCloskey, the second defendant, was the operator of the Facebook page ‘Keeping our Kids Safe from Predators 2’. Facebook also hosted a page operated by a person who the court referred to as RS. RS was the father of one of CG’s victims. CG indicated that he had not brought a claim against RS given the extent of the harm he has already caused his family.

CG was convicted in 2007 for a number of sexual offences. The overall sentence imposed on CG was 10 years. He was released on licence in 2012. CG lived with his disabled father and before the postings had regular supervised contact with his disabled son. CG remained under the supervision of the Public Protection Arrangements in Northern Ireland. Since his release from prison, CG had been assessed as not posing as a significant threat to members of the public.

The claimant was seeking damages and an injunction on the basis that Facebook misused private information. He also claimed that the defendants were in breach of Articles 2, 3 and 8 of the European Convention on Human Rights (ECHR), were guilty of actionable negligence and that Facebook were in breach of the Data Protection Act 1998.

The series of postings on the Facebook pages were threefold. The first series of postings were made on Mr McCloskey’s Facebook page ‘Keeping our Kids Safe from Predators 2’. The post attracted up to 180 comments all of which were hostile to the claimant. Mr Justice Stephens categorised the comments made at paragraph 31 of the judgment. The categories included ‘violent language and expressions of support for others who would commit violence against CG’ as well as ‘identifying CG’s location’. The postings used very strong abusive language and many described acts of violence towards CG. CG gave evidence as to the effect of the postings. He described how he lived in increased fear. He told the court that he had anticipated name calling upon his release from prison, this was a result of his conviction and that he would have live with it but the threat of violence and that people could find out/pinpoint his exact whereabouts left him extremely concerned. The comments affected not only CG but his father, his brother and the persons responsible for the Public Protection Arrangements in Northern Ireland. There was also an effect on his family life as the series of postings put his relationships with his father and brother under strain and the direct contact with his son came to a halt. The second series of postings were on the Facebook page of RS. RS had uploaded a picture of CG identifying him as a convicted sex offender. As well as identifying the area in which CG lived, he warned parents to keep their children away from him as he was a danger to them. He also prompted people to share the photo and title. The photo was subsequently shared 1,622 times. The third series of postings was again on RS’s Facebook page. He reposted the photo he had previously uploaded. The photo attracted comments on both occasions equivalent to the seriousness of the first and second postings.

Mr Justice Stephens referred to the evidence put before the court by Facebook. Facebook explained that it had a specific protocol where there was a complaint that postings/content had the potential to cause physical harm or were a direct threat to public safety. The system requires the individual to provide Facebook with the URL to each and every comment made. Mr Justice Stephens said that this was a ‘laborious task’ to undertake. The task involves clicking on each comment and accurately recording the URL. Facebook then require an explanation as to why it should consider its removal. It was held that Facebook should have been aware of the postings through Mr McCloskey’s previous involvement in the case of XY v Facebook Ireland Ltd [2012] NIQB 96. In XY v Facebook Ltd, the claimant, notably not CG, was a convicted sex offender. The facts of the case were virtually the same. An application for an interlocutory injunction was made against Facebook in respect of posts on Mr McCloskey’s initial Facebook page ‘Keeping our Kids Safe from Predators’. The court ordered the whole page to be removed by Facebook. The page was removed by Facebook but within hours, Mr McCloskey had set up ‘Keeping our Kids Safe from Predators 2’.

Mr Justice Stephens held that Facebook should have had the resources, capacity and knowledge to look for and assess the material posted even before a letter of claim or complaint was made by CG. Furthermore, Facebook provided no evidence as to what knowledge it had of previous complaints made by CG and how expeditious its procedures were. From this, Mr Justice Stephens drew adverse inference that were evidence produced, it would not have withstood scrutiny: -

“Despite the lack of evidence as to its internal procedures it was asserted on behalf of the first defendant that it had acted expeditiously once it had received proper notification from the plaintiff of his complaints in relation to the three series of postings.  It was also asserted that it had inadequate notification from the plaintiff in order to determine whether the content was unlawful.  There was simply no evidence to support either of those propositions…  If the address of a sex offender was published on Facebook together with an incitement to physically assault him at that address then such a posting would be obviously unlawful and expedition would require immediate removal.”

The court then referred to the evidence of the second defendant. Mr McCloskey explained to the court that he set up the Facebook page as a way to name and shame offenders. He suggested that the page was to provide emotional support for the victims of offenders. Mr McCloskey had told the court that he devoted a considerable amount of time researching news articles in order to repost them onto his Facebook page; he would also repost information that was sent to him by others. Mr McCloskey did not make any money from the site.

Mr Justice Stephens held that even though Mr McCloskey had the ability to delete the comments made by others on his first Facebook page “Keeping Our Kids Safe from Predators,” he did not really care what was posted and that he took no steps to control it. Mr Justice Stephens discerned Mr McCloskey’s attitude and purpose of both Facebook pages based on comments he had made on the internet. For example, shortly after Mr McCloskey had set up ‘Keeping Our Kids Safe from Predators 2, he posted “I’ve just had a visit from the local police.  apparently, there might be civil cases brought against me for the last page …  I SAID YOU CAN’T GET BLOOD OUTTA STONE I’M SKINT THEY CAN WORK AWAY …” [sic]. Mr Justice Stephens found that Mr McCloskey was “totally indifferent as to the lawfulness of his conduct safe in the knowledge that he cannot suffer any financial penalty”. He held that the second defendant:-

“…is quite prepared to pay no attention to the legal protections for CG and to operate outside of the law. I consider that he justifies this on the basis of his own view that the law should not afford sex offenders any protection.”

He went on:-

“I consider that the second defendant set up and operated the profile page “Keeping our kids safe from predators” to destroy the family life of sex offenders, to expose them to total humiliation and vilification, to drive them from their homes and to expose them to the risk of serious harm.  I consider that he knowingly encourages harassment of sex offenders by other individuals by the comments he makes and by the aim and purpose of the profile/page.”

Lastly, the court considered Directive 2000/31/EC which provides that ‘a Member State shall not impose a general obligation on [an information society service (‘ISS’)] provider to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity’ and the Electronic Commerce (EC Directive) Regulations 2002 which states that an ISS will not be liable for damages where it does not have the actual knowledge of the unlawful activity and that as long as the ISS acts expeditiously to remove or disable access to the information. Facebook said that in order to have actual knowledge of the unlawful activity or information, it needed to receive adequate notification from CG, this including details of the URL(s). Facebook said that as soon as it received the adequate notice from CG that it removed the content expeditiously. Mr Justice Stephens did not accept this. He said that Facebook:-

“…has considerable resources at its disposal and does not require to have spelled out to it on each occasion with inappropriate precision the particular laws of the UK which are in issue and which are being contravened.  For instance, to take an example not applicable to this case, it can be assumed that the first defendant knows that organising terrorism is unlawful and does not need that to be spelt out to it.  It can also be assumed that the first defendant knows that harassing and threatening violence against sex offenders together with attempts to publicise exactly where the sex offender lives are also unlawful being the misuse of private information and contrary to public policy.”

Conclusion

Mr Justice Stephens found Facebook liable for the misuse of private information and Mr McCloskey liable for the misuse of private information and harassment.

Mr Justice Stephens, whilst holding that CG had an expectation of privacy in relation to the details of his conviction/sentence, his whereabouts, photograph and family life, he did not make any finding of breach of the Data Protection Act 1998 by Facebook. This was because it had not been established that the act applied to it. Furthermore, the Court did not make a finding against the human rights claims as, in his closing speech, counsel for CG had submitted that the causes of action were most properly categorised as a misuse of private information against Facebook and misuse of private information and harassment against Mr McCloskey and therefore, other than the Data Protection Act 1998, the focus of the judgment remained only on these actions.

Mr Justice Stephens awarded CG £20,000 in damages (£15,000 against Facebook and Mr McCloskey and a further £5,000 against Facebook in respect of the postings by RS). Mr Justice Stephens made an injunction against Mr McCloskey preventing him from harassing, pestering, annoying or molesting CG whether by publishing, distributing, broadcasting or transmitting any information on the website facebook.com or otherwise and also ordered Facebook to terminate the profile/page “Keeping our Kids Safe from Predators 2”.

Comment

Although CG v Facebook and Joseph McCloskey is not directly binding on the courts of England and Wales, the decision is likely to be highly persuasive.

The decision confirms that convicted sex offenders have a right to privacy and to be protected from harassment. Notably, the Court was not simply concerned with the application of Article 8 ECHR privacy rights, but also Articles 2 ECHR (the right to life) and Article 3 ECHR (the prohibition of torture, inhuman or degrading treatment/punishment). Article 8 is common feature of publication claims, but there is no reason why Articles 2 and 3 should not also be applied where there a publication places an individual(s) at risk of life or limb.

However, perhaps of wider significance was the judicial intolerance to Facebook’s tardiness and burdensome mechanism for seeking the filtering/removing content and the suggestion that complaints cannot be seen ‘afresh’ where a host company is effectively put on notice that an individual has a propensity to publish unlawful material.