Ref:

Judgment: approved by the Court for handing down (subject to editorial corrections)*

GIL902 4

Deliver ed:

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ________ QUEENS BENCH DIVISION ________ BETWEEN: J19 -a !J20 "#a$ %$&&'( -)FACEBOO* IRELAND D+&+ !a %, ________ GILLEN J [1] This is an application on behalf of the defendant to vary and discharge orders of injunction dated 27 September 2013 made in the case of both plaintiffs [2] The orders for injunction have been made on foot of e! parte applications by counsel on behalf of the plaintiffs "ach plaintiff has successfully sought to be anonymised being described by the ciphers #$1%& and #$20& 'll parties (ere agreed that these ciphers should continue for this hearing [3] )n essence t(o injunctions (ere made *or reasons (hich (ill soon become clear+ the first emergency interim injunction is of no moment )t (as to the effect that the defendant must remove from the #)rish ,lessings& (ebpage of its (ebsite+ the #'rdoyne -nder Siege (ebpage& and the #,elfast ,anter (ebpage& references to and pictures of the plaintiffs to include all entries and comments on same These removals have no( been perfected

[.] ' second interim junction+ (hich is the subject of the application+ restrained #the defendant from placing on its (ebsite photographs of the plaintiff+ his name+ address or any li/e personal details until further order& in each case To meet the reproach that the order re0uired greater precision 1r 2eraghty+ (ho appeared on behalf of the plaintiffs+ canvassed a redrafting of the second injunction to read3 #'n interim injunction restraining the defendant from placing or allo(ing to be placed on its (ebsite the 4laintiff5s name or similar material identifying the 4laintiff and (hich associates him (ith the activities alluded to in the material (hich (as the subject of the interim injunction at paragraph 1 & Ba-./012 ! [6] )n this matter the plaintiffs have issued (rits for damages in virtually identical terms by reason of the follo(ing3 The anticipated future breach of right to life pursuant to the 2uman 7ights 'ct 1%%8 ,reach of his rights not to be subjected to inhuman and degrading treatment ,reach of his right to privacy ,reach of the 9ata 4rotection 'ct 1%%8 1isuse of private information at common la( by the defendant )n and about the publication of photographs+ information and comments on the *aceboo/ (ebpages entitled #)rish ,lessings&+ #'rdoyne under Siege& and #)rish ,anter& on 11 September 2013 and on subse0uent dates The plaintiffs also see/ injunctions against the defendant3 ;ompelling it to remove the photographs and references to the plaintiffs 7estraining the defendant from placing or allo(ing to be placed further photographs and information of a li/e nature to that previously published on its (ebpages 7e0uiring the defendant to carry out ade0uate monitoring of the (ebpages to prevent further publication of a li/e nature
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;ompelling the defendant to remove any such content placed upon its (ebpages in future (ithout delay 7e0uiring the e!purgation by the defendant of any electronic copies of the photographs and information published+ held or controlled by the defendant

[7] The applications for interim injunctions had been founded on the affidavits of $1% and $20 That of $20 averred+ inter alia+ the follo(ing3 ' number of articles on *aceboo/ included the use of a photograph or photographs of himself (hich (ere ta/en and used (ithout his authority 2e described the photographs as appearing on #7epublican (ebpages& hosted by *aceboo/ )reland <imited =ne of the photographs of himself had been superimposed on a huge -nion $ac/ (ith the title #1eet Sectarian 4arade =rganiser& >$20? This had been posted on a number of *aceboo/ pages (ith the tagline #'nother <oyalist ,igot "!posed 2e >$20? organised more <oyalist parades and protests than you can sha/e a fleg at+ he is as bitter as the day is long @sectarianscumbag& =ther photographs depicted him in front of a flag and refer to him as a (oman beater and a person (ho ta/es drugs ' further photograph described him as a tout 2e had read an article in the Sunday Aorld recently indicating that 9issident 7epublicans (ould be targeting #<oyalist protestors& 2e too/ this to mean people involved in issues surrounding the decision by ,elfast ;ity ;ouncil not to fly the flag at the ;ity 2all ' number of offensive and threatening comments had been added by #any number of mainly anonymous members of the public (ith a great deal of antipathy to(ards people of my bac/ground& 2e (as particularly distressed by reference to the fact that he had ;atholic children 2ence he (as concerned for the (elfare of his children 'ccordingly he feared for his personal safety and (as in perpetual state of an!iety Since these comments+ he had not been staying in his o(n home off the Shan/ill 7oad in ,elfast and feared he could be easily identified by the pictures and (ould be attac/ed

2e declared he had a history of mental illness and the publication (as causing him a great amount of distress+ untold an!iety and a detrimental effect on his health

[8] $1% had made a similar affidavit referring to him appearing on a number of (hat he described as #7epublican (ebsites hosted by *aceboo/ )reland <imited& 2e made the follo(ing points3 The main photograph sho(ed a picture of him standing beside a large -nion $ac/ (hich has #<o(er Shan/ill& (ritten across it There (as inset a photograph of a man in a balaclava standing beside a coffin The clear inference (as that the man in the balaclava (as him The coffin referred to had a picture of ,obby Sands attached to the top of it and attached to the front of the coffin (ere fast food cartons (ith the name of other deceased hunger stri/ers (ritten upon them =n the 'rdoyne -nder Siege (ebpage and ne!t to this photoB montage+ he (as described as #this /nuc/le dragging bigot >$1%? from the <o(er Shan/ill Scum& 'nother states #Aud love five minutes (ith that fuc/n rat )9 /ic/ him da death and his family& 'nother states #(hen they a beating the (orst they cried at they did not mean it sad ppl need shooting li/e that& $1% claimed that he (as recently threatened in the vicinity of the 'rdoyne shops (ith someone shouting #(e /no( you >$1%? you are getting (hac/ed& in a threatening and menacing manner 2e felt this (as a threat against his life Since the name used (as his o(n he believed he had been recognised by the person ma/ing the threat from the *aceboo/ (ebpage since he (as described by that particular name on that page 2e is in fear of an attac/ on his life at all times and that it (ill only be a matter of time before someone identified him in the ,elfast area since he lives just off the Shan/ill 7oad in ,elfast in close pro!imity to the Springfield 7oad peace line

[%] ,efore me+ 1r 2eraghty+ (ho appeared on behalf of the plaintiffs+ added that in addition to the threats set out above+ $20 had had a previous relationship (ith the halfBsister of a 9issident 7epublican and (as therefore (ell /no(n and accordingly a further target 2e referred to recent shootings in north ,elfast (hich gave him clear concerns for attac/s upon both $1% and $20
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"0$ -$3#+' /1)+0 $ / $ %+0$4 $ 52 -%$1 ' [10] These principles are no( so (ell trammelled that ) can set them out in brief compass [11] 'merican ;yanamid ;o v "thicon <imited >1%76? '; 3%: is the seminal case setting out the obligations on the applicant to establish a serious 0uestion to be tried+ that damages are inade0uate+ that the status 0uo should not be preserved and the overall balance of convenience has to be considered )n cases (here the right to freedom of e!pression under article 10 of the "uropean ;onvention on 2uman 7ights and *undamental *reedoms 1%60 >the convention? is engaged+ the court must give effect to Section 12>3? of the 2uman 7ights 'ct 1%%8 (hich precludes the grant of interim injunctive relief #unless the court is satisfied that the applicant is li/ely to establish >at the trial? that publication should not be allo(ed & [12] ) bear in mind the observations of <ord Cicholls in ;ream 2oldings v ,anerjee [2006] 1 '; 263 at [1%] (here he said3 #The matter goes further than these procedural difficulties ;ases may arise (here the adverse conse0uences of disclosure of information (ould be e!tremely serious+ such as a grave ris/ of personal injury to a particular person Threats may have been made against a person accused or convicted of a crime or a person (ho gave evidence at a trial 9isclosure of his current (hereabouts might have e!tremely serious conse0uences 9espite the potential seriousness of the adverse conse0uences of disclosure+ the applicant5s claim to confidentiality may be (ea/ The applicant5s case may depend+ for instance+ on a disputed 0uestion of fact on (hich the applicant has an arguable but distinctly poor case )t (ould be e!traordinary if in such a case the court (ere compelled to comply (ith a Dprobability of success5 test and therefore+ regardless of the seriousness of the possible adverse conse0uences+ refuse to restrain publication until the disputed issue of fact can be resolved at the trial & [13] 1uch judicial and academic in/ has been spilt on the principles to be applied in the case of interim mandatory injunctions Eoc/oll Froup <imited v 1ercury ;ommunications <imited [1%%8] ' S 7 36. approved of the observations of ;ad(ic/ $ in Cottingham ,uilding Society v
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"urodynamic Systems 4lc [1%%3] ' S 7 .:8 (here he set out four (ell /no(n principles3 (hich course is li/ely to involve the least ris/ of injustice if it turns out to be (rong+ the need to bear in mind that such an order re0uires a party to ta/e a positive step carrying a greater ris/ of injustice if it turns out to have been (rongly made+ the need for the court to feel a high degree of assurance that the plaintiff (ill be able to establish his right at trial+ and finally even (here the court is unable to feel this high degree of assurance there may be still be circumstances in (hich it is appropriate to grant such an injunction at an interlocutory stage

[1.] *or my o(n part+ ) consider that the approach adopted by <ord 2offmann in Cational ;ommercial ,an/ of $amaica <imited v =lint ;orpn <td [200%] 1 A<7 is the most convenient summary to guide a judge in such matters (hen he said3 #There is G no reason to suppose that+ in stating >the 'merican ;yanamid? principles+ <ord 9iploc/ (as intending to confine them to injunctions (hich could be described as prohibitory rather than mandatory )n both cases+ the underlying principle is the same+ namely+ that the court should ta/e (hichever course seems li/ely to cause the least irremediable prejudice to one party or the other G Ahat is re0uired in each case is to e!amine (hat on the particular facts of the case the conse0uences of granting or (ithholding of the injunction is li/ely to be )f it appears that the injunction is li/ely to cause irremediable prejudice to the defendant a court may be reluctant to grant it unless satisfied that the chances that it (ill turn out to have been (rongly granted are lo(H that is to say+ the court (ill feel G a high degree of assurance that at the trial it (ill appear that the injunction (as rightly granted & [16] ,efore turning to the facts of this case+ it is important in the conte!t of the instant case to dilate upon the need for clarity and precision in mandatory injunctions The seminal principle (as set out in 1orris v 7edland ,ric/s <td >1%:%? 2 'll "7 67: at 680 (here <ord -pjohn stated3
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#G The court must be careful to see that the defendant /no(s e!actly in fact (hat he has to do and this means not as a matter of la( but as a matter of fact+ so that in carrying out an order he can give his contractors the proper instructions & [1:] 4recision is a 0uestion of degree and the courts have sho(n themselves (illing to cope (ith a certain degree of imprecision in cases of orders re0uiring the achievements of a result in (hich the plaintiff5s merits appeared strong )t is+ ta/en alone+ a discretionary matter to be ta/en into account albeit a very important one [17] 2o(ever the terms of a court5s order+ reflecting the terms of an obligation+ need to be precisely dra(n to ensure that the possibility of (asteful litigation over compliance is decreased The oppression caused by the defendant having to do things under the threat of proceedings for contempt is that #the less precise the order+ the fe(er the signposts to the forensic minefield (hich he (as to traverse& >;oBop )nsurance v 'rgyll [1%%7] 3 '"7 2%7 per <ord 2offmann at 303>h? ? T6+ R+/2#a%107 C1 %+8% [18] )n the interests of completeness ) dra( attention to the follo(ing 7egulations and 9irectiveBBB [1%] 7egulation 1% of the "lectronic ;ommerce 7egulations 2002 provides as follo(s (here relevant3 >"; 9irective?

#Ahere an information society service is provided (hich consists of the storage of information provided by a recipient of the service+ the service provider >if he other(ise (ould? shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage (here3 >a? The service provider I >i? does not have actual /no(ledge of unla(ful activity or information and+ (here a claim for damages is made+ is not a(are of facts or circumstances from (hich it (ould have been apparent to the service provider that the activity or information (as unla(fulH or

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upon obtaining such /no(ledge or a(areness acts e!peditiously to remove or disable access to the information+ and

>b? The recipient of the service (as not acting under the authority or control of the service provider& [20] 9irective 2000J31J"; at 'rticle 16>see also 7ecital 17? provides that3 #1ember States shall not impose a general obligation on providers+ (hen providing the services covered by 'rticles 12+ 13 and 1.+ to monitor the information (hich they transmit or store+ nor a general obligation actively to see/ facts or circumstances indicating illegal activity 2 1ember States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities underta/en or information provided by recipients of their service or obligations to communicate to the competent authorities+ at their re0uest+ information enabling the identification of recipients of their service (ith (hom they have storage agreements& T6+ '294$''$1 ' 1& %6+ !+&+ !a % $ %6+ $ '%a % -a'+

[21] )n the course of a s/ilfully produced s/eleton argument augmented by oral submissions+ 1r 2op/ins on behalf of the defendant made the follo(ing points3 There (as no evidence before the court of a real and immediate ris/ to the life of the plaintiffs under article 2 of the convention+ being ris/s that (ere objectively verified and (hich (ere present or continuing >King v Sunday Ce(spapers <imited [2010] C)L, 107? There (as no evidence amounting to the breach of 'rticle 3 under the ;onvention Aeighing the competing rights under 'rticle 8 of the convention+ namely the right to private and family life of the plaintiffs against article 10 namely the defendant5s right to freedom of e!pression+ the plaintiffs had failed to establish any evidence of the
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circumstances in (hich the photographs (ere ta/en re0uired to threaten article 8 autonomy The plaintiffs have not sho(n a very strong probability on the facts of grave damage accruing in the future if the mandatory injunctions (ere not granted There (as insufficient precision in either the injunction granted or in the suggested amendment by the plaintiff >see paragraph . supra? *aceboo/ could not comply (ith the order as it stands because it is impossible for it to prevent its users from accessing the (ebsite and posting this content *aceboo/ has over 1 billion monthly active users (orld(ide in over 200 jurisdictions )t is not reasonably possible for *aceboo/ to monitor all the content placed upon the (ebsite to ascertain if any one piece of information relates to the plaintiffs as opposed to someone else (ith the same name "ven if this (ere feasible it is submitted that this (ould place an overly onerous and disproportionate burden upon *aceboo/ 's an information society service under the 9irective 2000J31J"; at paragraph 16 no general obligation is imposed to monitor the information (hich they transmit or store nor is there a general obligation actively to see/ facts or circumstances indicating illegal activity *aceboo/ has reporting mechanisms (hich the plaintiff can use to challenge any ne( material This procedure accords (ith the #notice and ta/e do(n& system envisaged by 7egulation 1% of the "lectronic ;ommerce >"; 9irective? 7egulation 2002 %6+ $ '%a % 301-++!$ /'

T6+ 3#a$ %$&&' -a'+ $

[22] 1r 2eraghty+ in the course of succinct and focused (ritten submissions augmented by oral argument+ made the follo(ing points3 The defendant has a general responsibility to properly monitor the nature of material appearing on its (ebsite The defendant operates an electronic complaints system and can bring sanctions to bear upon (ebpage hosts The defendant has failed to provide any evidence on the feasibility+ proportionality and onerous nature of the injunction no( sought There is ample evidence of serious ris/ of breach of the 'rticle 2 rights of both of these plaintiffs in light of the affidavit evidence mentioned above
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The proposed amendment to the injunction no( sought provides ade0uate precision )t is possible for the defendant to set up an automatic electronic monitoring device (hich (ould respond to the appearance of the plaintiffs5 names =ne billion users (ould not need to be monitored

C1 -#2'$1 [23] Ahilst ) (as not persuaded that this (as an instance falling under article 2 of the convention for reasons mentioned in paragraphs 27 and 28 belo(+ solely for the purposes of these applications ) (as prepared to approach the issues on the basis that the presence of the (ebpages concerned did create a real ris/ of infringing the plaintiffs5 rights to freedom from inhuman and degrading treatment under 'rticle 3 of the ;onvention and their right to respect for private and family life under 'rticle 8 Ceedless to say ) do so (ithout prejudice to a possible later finding by the court that such an infringement has not occurred *or the purposes of this application ) (as also prepared to accept that the hurdle of Section 12>3? of the 2uman 7ights 'ct to the effect that the courts should not ma/e an interim restraint order unless satisfied that the moving parties5 prospects of success at the substantive trial (ere sufficiently favourable to justify such order had been surmounted [2.] The first injunction is clearly no longer re0uired since all of the offending material hosted on the (ebpages referred to in the orders for the injunction have been removed ) therefore discharge that interim injunction So far as the second injunction is concerned ) have come to the conclusion that it also must be discharged for the follo(ing reasons (hich can be stated (ith reasonable brevity [26] *irst+ the la( re0uires reassuring clarity and intellectual coherence The flo( of authority I (ell illustrated on a practical level in MN v *aceboo/ )reland <imited [2012] C)L, %: at [20] in the judgment of 1c;los/ey $ I is that such orders re0uire precision 9efendants must not be left in a state of tormented ignorance of precisely (hat is re0uired to be done Aould the defendant in the instant case be re0uired to ta/e do(n la(ful comments of a general nature similar to that set out in the orderO Aould the defendant have to ma/e a value judgment on (hether the comments (ere la(ful or notO )n short such orders are all too imprecise and (ould re0uire perhaps the court to give an indefinite series of rulings to ensure the e!ecution of the court order )njunctions cannot be based on glimpses and suggestions Ahilst a search for lambent precision may be too e!acting a tas/ in some instances the fact of the matter is that if the court order cannot be precisely dra(n there is a possibility of (asteful litigation over compliance The defendant (ould suffer oppression caused by it having to ma/e such judgment calls under threat of proceedings for contempt To borro( the je(elled phrase of
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<ord 2offmann in the ;oBop )nsurance v 'rgyll case #The less precise the order+ the fe(er the signposts to the forensic minefield (hich has to be traversed & ) am satisfied that the order sought in this case is too imprecise and the suggested amendment by counsel does not repair the deficit [2:] Secondly+ on the evidence open to me at the moment+ it does seem that monitoring all the possible (ebsites could impose a disproportionate burden on the defendant =f course the plaintiffs (ill be able to see/ further relief from this court if there is any recurrence of the offending publications )t (ill then be open to *aceboo/+ acting responsibility and in accordance (ith their principles+ to proactively ta/e the steps for necessary removal and closure [27] Thirdly+ ) consider that there (as insufficient evidence before me at this stage I a position (hich may of course be corrected by the time of trial I to lead me to come to the conclusion that it is li/ely that the plaintiffs (ould establish a breach of 'rticle 2 of the ;onvention )n ;arlin5s >9aniel 1artin? 'pplication [2013] C);' .0+ in the conte!t of an application for judicial revie( of a 9istrict $udge5s decision to refuse to ma/e an order for anonymity in respect of an applicant charged (ith offences relating to the ma/ing of indecent images of children+ 1organ <;$ said at [6]3 #[6] Ahen this application (as made there (as no material from police before the 9istrict $udge at the time that he made his decision Ae consider that (here it is proposed to ma/e an application for anonymity for a defendant there should be at the earliest possible time notification to the court+ the police and the prosecution setting out the circumstances of the application This should include any statements upon (hich the applicant may (ish to rely The police should be as/ed to comment on (hether there is any reason to consider that there is a ris/ or threat to the individual concerned and if possible to give some indication as to (hat+ if any+ steps have been or might be ta/en in relation to it & [28] )t seems to me that in cases involving allegations of breach of 'rticle 2 rights+ such as in the present instance police evidence or something similar may (ell be re0uired in order to satisfy the court save in the most obvious instances ) am satisfied that the ipse di!it of a plaintiff (ill only in rare instances be sufficient [2%] )n the conte!t of this hearing ) invited counsel to comment on the recent decision in the "uropean ;ourt of 2uman 7ights 9elfi v "stonia
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>'pplication Co :.6:%J0%? 9elfi (as an internet ne(s portal that publishes up to 330 ne(s articles a day and as one of the largest ne(s portals on the internet in "stonia 't the end of the body of the ne(s articles there (ere (ords #add your comment& and fields for comments+ the commenter5s name and his or her eBmail address >optional? ,elo( those fields there (ere buttons #publish the comment& and #read& The comments (ere loaded automatically and (ere+ as such+ not edited or moderated by the applicant company The articles received about 10+000 readers5 comments daily+ the majority posted under pseudonyms There (as also ho(ever+ a system of notify and ta/e do(n in pace 'ny reader could mar/ a comment as insulting or moc/ing and the comment (as removed e!peditiously *urther there (as a system of automatic deletion of comments that included certain stems of obscene (ords and a victim of a defamatory comment could directly notify the applicant company in (hich case the comment (as removed immediately [30] The "uropean court robustly determined that an internet ne(s portal can be liable for offensive comments (hich (ere posted belo( a ne(s article about the decision of an "stonia ferry company to change the route of a ferry line )n essence the court said that 9elfi could have foreseen that their story (ould spar/ fierce debate including offensive user posts and that they could have been more proactive in ensuring the appropriate monitoring tools (ould be available if necessary )n short the prior automatic filtering and notice and ta/e do(n system used by the applicant company did not ensure the sufficient protection for the rights of third persons The court believed that the difficulty in establishing the identity of persons (ho (rote the anonymous comments (as so material that holding 9elfi responsible for those posts (as the only viable (ay to attribute liability The court (as of the opinion that efforts to identify the person responsible did not out(eigh the societal burden of transferring the liability or the comment to the onBline platform [31] This case may (ell be fact sensitive and indeed subject to an appeal to the Frand ;hamber Time (ill tell (hether the line of reasoning of the ";27 in this case is the start of a ne( movement to(ards a broader monitoring obligation of intermediaries or if it is only applicable to the specific events in this case [32] 7e reading this case ) e!perienced a sense of shrin/ing relevance to the instant case )t is distinguishable from the facts no( under consideration if for no other reason than that the parties responsible (ere identifiable )t is perhaps also important to appreciate that in the 9elfi case the "B;ommerce 7egulations 2002 did not play a part "ach "1ember State has implemented the "- 9irective on "B;ommerce >2000J31? 'rticle 1. (hich includes an e!ception for #hosting& (hen a company providing an information storage service >ie hosting comments under its articles?+ does not have /no(ledge of the unla(ful activity or information and upon being made a(are of it acts e!peditiously to remove or prevent access to the information The "stonian Supreme
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;ourt had rejected 9elfi5s attempted use of that provision but the ";27 only considered (hether the particular "stonian la( under (hich 9elfi (as liable (as an unla(ful interference (ith 9elfi5s rights or free e!pression The -K has transposed the "- 9irective into its national la( (ith the "B ;ommerce 7egulations 2002 >See reference to 7egulation 1% above at paragraph [1%] above? ;ourts in the -nited Kingdom e g TamiP v Foogle [2012]"A2;..% have concluded that the practice of (ebsites monitoring comments >anonymous or other(ise? and s(iftly removing defamatory ones (hen they are brought to their attention has so far been sufficient to help most companies avoid liability The ";27 ruling does not in my vie( therefore suggest that such an interpretation of the "- 9irective is incorrect )t is still up to the national la(s of a country to decide if a company is liable in the first place and the "uropean ;ourt of $ustice remains an alternative avenue for appeal [33] 'ccordingly+ ) am unpersuaded despite having ta/en its findings into account that the case of 9elfi is sufficient to aid the plaintiffs in this case [3.] ) therefore discharge the second interim injunction

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