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…..the graphic opening words of today’s decision by the Supreme Court in a defamation case. The next words are equally clear and arresting: ” What would those words convey to the “ordinary reasonable reader” of a Facebook Post?”
The context was a recently ended unhappy marriage between Mr Stocker (the Claimant) and Mrs Stocker (the Defendant), and a series of posts arising out of a Status Update by a Mrs Bligh (Mr Stocker’s new partner) in December 2015. Mrs Stocker and Mrs Bligh commented on each other’s posts for the next 2 hours 18 minutes. Mrs Stocker did not mince her words: “I hear you have been together 2 years? If so u might like to ask him who he was in bed with the last time he was arrested.”
This was quickly followed by “wouldn’t bring it up last time I accused him of cheating he spent a night in the cells, tried to strangle me..”. This was a reference to an incident which had happened some 12 years before.
Mr S did not take kindly to this attempt “to blacken [him] in the eyes of his current girlfriend and belittle her”: as the Court of Appeal put it.
He sued. He won before the judge, and before the Court of Appeal.
You would have to be a monk or, at any rate, in an entirely internet-free zone, not to have had your recent days troubled by endless GDPR traffic. The tiniest charity holding your name and email address up to the data behemoths have asked, in different ways, for your consent for them to hold your personal data. You may have observed the frankness and simplicity of the former’s requests and the weaseliness of the latter’s, who try to make it rather difficult for you to say no, indeed to understand what precisely they are asking you to do.
Just in case you have not looked at it, here is the Regulation. It is actually a good deal easier to understand than a lot of the summaries of it.
This lack of transparency in these consent forms/privacy statements had not gone unnoticed by one of Europe’s more indefatigable privacy sleuths. Max Schrems, an Austrian lawyer, who, at 30 years of age, has already been to the EU top court twice (see here and here), moved fast. By the end of GDPR day last Friday, 25 May, he sued global platforms with multibillion-euro complaints. 3 complaints said to be valued at €3.9 billion were filed in the early hours against Facebook and two subsidiaries, WhatsApp, and Instagram, via data regulators in Austria, Belgium and Germany. Another complaint valued at €3.7 billion was lodged with France’s CNIL in the case of Google’s Android operating system.
Unlockd Ltd and others v Google Ireland Limited and others (unreported, Roth J, Chancery Division 9 May 2018) – transcribed judgment awaited
Unlockd, an app developer, sought an interim injunction to prevent Google withdrawing its services. Roth J found that the balance of convenience was in the applicants’ favour. Their claim raised a serious issue to be tried and any action by Google to withdraw their platform would severely damage the applicants’ business. An interim injunction was granted. Continue reading →
Social Media button on a keyboard with speech bubbles.
Barbulescu v Romania, 12 January 2016 – read judgment
In December 2015, the European Court of Human Rights, by 6 votes to 1, dismissed a Romanian national’s appeal against his employer’s decision to terminate his contract for using a professional Yahoo Messenger account to send personal messages to his fiancé and brother.
Mr Barbulescu contended that his employer had breached his Article 8 right to respect for his private life and correspondence, and that the domestic courts had failed to protect his right. The Court found that there had been no such violation because the monitoring of the account by his employer had been limited and proportionate.
Background facts
Mr Barbulescu’s employers asked him to create a Yahoo Messenger account for responding to client enquiries and informed him that these communications had been monitored. The records showed that he had used the Internet for personal purposes, contrary to internal regulations. The employer’s regulations explicitly prohibited all personal use of company facilities, including computers and Internet access. The employer had accessed the Yahoo Messenger account in the belief that it had contained professional messages. Continue reading →
Richardson v Facebook [2015] EWHC 3154 (2 November 2015) – read judgment
An action in defamation and under the right to privacy against Facebook has been dismissed in the High Court. The Facebook entity named as defendant did not “control” the publication so as to allow liability; and even if it did, no claim under the Human Rights Act could lie against FB as it could not be described as any sort of a public authority for the purposes of Section 6 of the Act.
The claimant, acting as a litigant in person, sought damages in respect of the publication in 2013 and 2014 of a Facebook profile and a posting on the Google Blogger service. The Profile and the Blogpost each purported to have been created by the claimant, but she complained that each was a fake, created by an impostor. She claimed that each was defamatory of her, and infringed her right to respect for her private life under Article 8 of the European Convention on Human Rights (ECHR). Continue reading →
Brett Wilson LLP v Person(s) Unknown, Responsible for the Operation of the Website solicitorsfromhell.co.uk, 7 September (Warby J) [2015] EWHC 2628 (QB) – read judgment
This was a claim in libel by a firm of solicitors who acted for another firm which also claimed against the operators of SFHUK, causing the original site to be shut down (Law Society v Rick Kordowski [2011]). In this case the words complained of appeared on a new site, but despite efforts by the present claimants, it was not possible to find out who was operating it. The site alleged various aspects of mismanagement, including incompetence and fraud. It also quoted a client of the claimant firm who alleged overcharging and who refused to pay their fees. (It is worth noting that the site appears to have been taken down since default judgement was given in this case)
Gulati v. MGN Ltd [2015] EWHC 1482 (Ch), Mann J – judgment here
For some years in the early and mid 2000s, a routine form of news-gathering in the Mirror Group was phone hacking – listening to voicemails left for celebrities by their friends, and then dishing up revelations in their papers. And this judgment amounts to a comprehensive pay-back time for the years of distress and upset sustained by those celebrities, as the ins and outs of their private lives were played out for the Mirror Group’s profit. The damages awarded well exceeded those previously payable, as justified in the tour de force of a judgment by Mann J.
Warning – the judgment, compelling though it is, runs to 712 paragraphs. It concerns the assessment of damages in eight cases. The Mirror Group belatedly admitted liability and apologised, not before denying any wrongdoing to the Leveson inquiry. Other claims rest in the wings pending this trial. But with awards between £72,500 and £260,250, the bar has been set high by Mann J.
The claimants (with one exception) were the classic subjects of tabloid columns, namely EastEnders and Corrie stars (or those unfortunate to be married to them), the sometime air hostess girlfriend of Rio Ferdinand, Jude Law’s former wife, Sadie Frost, and, inevitably, Gazza. Seven sued because the hacking led to repeated articles about them. The eighth, Alan Yentob, Creative Director of the BBC, was hacked because of the information derived from the famous people who had left voicemails for him.
Google Inc v Vidal-Hall and others [2015] EWCA Civ 311 (27 March 2015) – read judgment
This case concerned the misuse of private information by an internet provider based in the United States. Google had secretly tracked private information about users’ internet browsing without their knowledge or consent, and then handed the information on to third parties (a practice known as supplying Browser-Generated Information, or ‘BGI’).
The issue before the Court of Appeal was twofold:
Was the cause of action for misuse of private information a tort, specifically for the purposes of the rules providing for service of proceedings out of the jurisdiction?
What was the meaning of ‘damage’ in section 13 of the Data Protection Act 1998 (the DPA) and in particular, did it give rise to a claim for compensation without pecuniary loss?
The Bussey Law Firm PC & Anor v Page [2015] EWHC 563 (QB) – read judgment
The facts of this case are simple. A defamatory comment was posted on the claimant’s Google maps directional page, implying that he was a “loser” as a lawyer and that his firm lost “80%” of cases brought to them. The defendant claimed that someone must have hacked in to his own Google account to put up the post.
There were jurisdictional complications in that the firm is situated in Colarado but these need not concern us here as Sir David Eady, sitting as a High Court judge, allowed the trial to go ahead in England. The real question was why any third party would have gone to the trouble of hacking into the defendant’s Google account in order to post the offending review; if the objective were merely to hide the hacker’s identity from the claimants, there would be the simpler option of setting up an anonymous Google account. This would in itself render the would-be publisher untraceable, and especially if it were done from a public computer. Continue reading →
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). Continue reading →
J19 and Another v Facebook Ireland [2013] NIQB 113 – read judgment
The High Court in Northern Ireland has chosen to depart from the “robust” Strasbourg approach to service providers and their liability for comments hosted on their sites. Such liability, said the judge, was not consonant with the EC Directive on E-Commerce.
This was 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. One of the injunctions restrained “the defendant from placing on its website photographs of the plaintiff, his name, address or any like personal details until further order.” These interim injunctions were awarded pursuant to writs issued by the plaintiffs for damages by reason of the publication of photographs, information and comments on the Facebook webpages entitled “Irish Blessings”, “Ardoyne under Siege” and “Irish Banter” on 11 September 2013 and on subsequent dates. Continue reading →
The legal regime around image rights has arisen out of common law concepts of property, trespass and tort (civil wrong). The common law system means that precedents for the protection of an individual’s likeness have arisen from judges’ decisions in cases involving unauthorised exploitation of a likeness where an individual has suffered damage as a result. Some US states have enacted specific legislation equating celebrities’ personality rights with property rights, where expiration of the rights occurs 70 years following the death of the celebrity.
Case C-131/12: Google Spain SL & Google Inc. v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González – read Opinion of AG Jääskinen
This reference to the European Court of Justice (CJEU) concerned the application of the 1995 Data Protection Directive to the operation of internet search engines. Apart from demonstrating the many complications thrown up by this convoluted and shortsighted piece of regulation, this case raises the fascinating question of the so-called right to be forgotten, and the issue of whether data subjects can request that some or all search results concerning them are no longer accessible through search engine.
HL (A Minor) v Facebook Incorporated, The Northern Health and Social Care Trust, The Department of Justice for Northern Ireland and others [2013] NIQB 25 (1 March 2013) – read judgment
In this somewhat chaotic action, the Plaintiff sued ten defendants, in anonymised form by her father and next friend.
The Writ stated that the Plaintiff, aged 12, had been engaged in posting and uploading sexually suggestive and inappropriate photographic images of herself onto Facebook, and that she had been doing so vis-à-vis several different accounts with differing profile names. She had been involved with the social services from the age of 11. From July 2012 to January 2013 she was the subject of a Secure Accommodation Order. She currently resides in a specialised unit, is a grade below secure accommodation.
This was clearly a bid by the father to bring his wayward daughter under control by restricting her access to the internet.
The permanent damage that internet publications can inflict is very much the focus of Tugendhat J’s assessment of damages in this case, encapsulated in the memorable description he quoted in an earlier judgment:
what is to be found on the internet may become like a tattoo.
Since the advent of internet search engines, information which in the past would have been forgotten (even if it had been received front page coverage) will today remain easily accessible indefinitely. So a libel claimant who has a judgment in his favour nevertheless risks having his name associated with the false allegations for an indefinite period.
This is just what had happened in the present case. The second defendant’s liability for libel had already been established. This hearing was to assess the appropriate level of damages for allegations he had published on the internet, in breach of restraining orders against him, suggesting the claimant was guilty of misappropriation of family funds and paedophilia. Continue reading →
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