“Keep our kids safe from predators” FB page on the rampage again

CG v Facebook Ireland & Another [2015] NIQB 11 (20 February 2015) – read judgment

The plaintiff was a former sex offender who had been identified on a Facebook page run by the second defendant called “Keep Our Kids Safe From Predators 2″. He had been released on licence and he was apprehensive about his safety upon his return to the community.

He resides with his father, who is disabled, and with his adult children one of whom is also disabled. He was particularly fearful of the reactions of others to his conduct in the light of the fact that his name had been published on the internet. I have posted on an earlier case where another former sex offender won an injunction against Facebook Ireland Limited in respect of the original KOKSFP, which was subsequently taken down  (XY v Facebook Ireland Ltd [2012] NIQB 96). 

In this case the plaintiff alleged that Facebook Ireland and the second defendant, who had founded and run both KOKSFP pages, had misused private information, were in breach of Articles 2, 3 and 8 of the ECHR, the Protection from Harassment (Northern Ireland) Order 1997 and that each of them were guilty of actionable negligence. In addition the plaintiff submitted that Facebook Ireland was in breach of the Data Protection Act 1998.  He sought damages and an injunction.

Background facts and law

It will be remembered from my summary of the XY case that the judge, McCloskey J, found that the content of the offending page in that case constituted, prima facie, unlawful harassment of XY and that the perpetuation of the webpage created a real risk of infringing XY’s right to freedom from inhuman and degrading treatment under Article 3 ECHR together with his right to respect for private and family life under Article 8 ECHR. The interlocutory injunction which he granted did not deal specifically with different postings on the offending webpage but rather ordered the first defendant to remove the whole page relating to XY from the website as this was “the only potentially efficacious remedy open to the court in the present circumstances.”

In this case Stephens J noted that as a result of comments on the defendants’ site, CG was

 extremely concerned and lived in increased fear as he anticipated violence being inflicted on him. CG expressed extreme concern, which I accept, as to the attempts of individuals on Facebook which tried to pinpoint where he lived. CG had not only extreme concerns for himself but also for members of his family. There was an effect on his family life as a result of the series of postings putting his relationships with his father and brother under strain and bringing direct contact with his disabled child to a halt.

CG’s increased fear of violence being inflicted on him was further enhanced as he believed that one of the individuals who posted comments on the profile/page used to be a commander in the UDA and who he believed had in the past gone to his house to attack him and as a consequence he had to leave the area in which he then lived. A further chilling instance of the harm done by the internet took place in August 213:

CG was fishing [at the marina] with his brother when he was verbally abused and threatened with assault. The individual who did this was unknown to CG but knew his name and identity. CG was called a “paedo” who should not be allowed out of prison and the individual stated that if he did not get off the pier he would throw him off the harbour wall. In his evidence CG stated that the individual enquired from him or stated to him that “You are that bastard on Facebook. Take yourself off before I throw you in.”

Despite the outcome of the XY litigation, and despite the letter from the plaintiff’s solicitors identifying the content of the KOKSFP2 page, Facebook Ireland was not prepared to take any steps to investigate until a complaint was made in a particular way. They responded to the solicitors’ letter by saying that they were unable to take any action regarding the content of the page without identification of the URL for each specific comment. The judge did not accept that Facebook was so trammelled. (As it happens, after a month after the complaint the first defendant took down the entire URL of the page concerning CG).

In general, Stephens J was unimpressed by Facebook Ireland’s stance in this matter.

I consider that the first defendant was put on notice by the XY litigation of the whole nature of the activities of the second defendant and the degree and nature of his motivation against all sex offenders in Northern Ireland. I also infer that the first defendant knew or ought to have known of the profile/page “Keeping our Kids Safe from Predators 2″ given that any simple searches by the first defendant would have revealed the new profile page with an almost identical name and with identical purposes. I consider that the first defendant had the capacity, resources and knowledge to look for and to assess material in relation to CG on the second defendant’s profile/page without receiving any letter of claim or any complaint from CG.

The first defendant’s failure to act expeditiously was not only reprehensible, it was unlawful as well. 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 and any delay in removal would lead to the consequence of the first defendant not being entitled to avail of the limitation of liability under the Electronic Commerce (EC Directive) Regulations 2002.

Under the 2002 Regulations an internet service provider is not liable for damages where it does not have actual knowledge of “unlawful activity or information” and 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. If it obtains such knowledge then it will not be liable if it acts expeditiously to remove or disable access to such information. The judge did not consider that Facebook Ireland could bring itself within this exemption. It had acquired actual knowledge of the second defendant’s unlawful activity in three separate ways, namely:

a) by virtue of the XY litigation,

b) by virtue of that litigation combined with the letters sent to the first defendant and to its solicitors, and

c) by virtue of those letters combined with some elementary investigation of the profile/page and/or the internet.

It could be assumed, for instance, that the first defendant knew that organising terrorism is unlawful and did not need that to be spelt out to it. It could also be assumed that the first defendant knew that harassing and threatening violence against sex offenders together with attempts to publicise exactly where the sex offender lives were also unlawful being the misuse of private information and contrary to public policy. Facebook Ireland therefore was liable to the plaintiff for misuse of private information. Stephens J accepted the plaintiff’s application for an injunction that the first defendant should take down the whole of the KOKSFP2 account, since it would not be right to wait for other sex offenders to come forward and pursue similar claims against the first defendant.

As for the second defendant the judge concluded that he was “totally indifferent” as to the lawfulness of his conduct safe in the knowledge that he could not suffer any financial penalty. He had shown by his conduct that he was quite prepared to pay no attention to the legal protections for CG and to operate outside the law. He justified this on the basis of his own view that the law should not afford sex offenders any protection. Stephens J noted that he

names sex offenders, identifies exactly where they live, that his actions required the individual to be moved, that he takes pride in this.

The judge concluded in the light of the above that the total award of damages payable to the plaintiff should be £20,000, although how much of this would be available from the second defendant is moot. The defendants had not sought any order as against each other.
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