NI: Facebook liable for privacy breach for failing to disable access to content

The High Court in Northern Ireland has awarded £20,000 in damages to a convicted sex offender for the misuse of private information.

Facebook Ireland Limited hosted a page operated by Joseph McCloskey entitled, 'Keeping our Kids Safe from Predators 2". The social media giant also hosted a page by RS, the father of one of CG's victims.

CG brought the case seeking damages and an injunction on the basis that Facebook and Mr. McCloskey misused private information, breaching Article 2, Article 3 and Article 8 of the European Convention on Human Rights, and are guilty of actionable negligence.

The case relates to a series of postings on Facebook. The first series of posting was on the profile page of Mr. McCloskey in April 2013, attracting more than 180 comments, all hostile to CG. The contents were removed by early June. The second series of postings was on the profile page of RS, appearing in November 2013 and removed in early December. The second series of postings included a photograph of CG, shared more than 1,600 times and the name of the area CG was thought to reside in. The third series of postings also appeared on the profile page of RS in late December 2013, removed in January 2014.

The High Court heard the system operated by Facebook to remove content requires the complainant to provide the Uniform Resource Locator (URL) for each posting which a complaint is made about. Mr. Justice Stephens observed that this requires the complainant to accurately record the URL for each posting, and requires the reasons to be provided as to why each posting should be removed. Mr. Justice Stephens described this system as "laborious":

The question also arises as to whether the requirement to have the URLs of each comment about which complaint is being made merely creates the potential for entering into endless and in some circumstances fruitless correspondence because with each new posting there is a new URL so there is endless potential to identify each URL given the speed with which comments can be added.

In evidence, CG explained that he was extremely concerned by the postings on Facebook, living in fear because he anticipated violence. This affected his relationship with his disabled child, who was concerned about being seen in the company of CG.

Mr. Justice Stephens held that CG had an expectation of privacy concerning his criminal convictions, the sentencing, and his personal information or information about his family. However, the expectation of privacy had to be balanced against the right to freedom of expression for Facebook and Mr. McCloskey.

In concluding, Mr. Justice Stephens held that the actions of Mr. McCloskey:

[...] incited violence and hatred. It was indiscriminate and led to the potential for public order situations to develop. It was an attempt to hunt a sex offender, to drive him from his home and to expose him to vilification. All of the content of the profile/page [...] in relation to CG was oppressive and unreasonable and there was a course of conduct over a period of time which amounted to harassment of CG and which both [Facebook] and [Mr. McCloskey] knew or ought to have known amounted to harassment of him.

Mr. Justice Stephens found Mr. McCloskey liable for the misuse of private information and for harassment. However, no finding were made in respect of any breach of the Data Protection Act 1998 because no case was pleaded. However, Mr. Justice Stephens found that the failure of Facebook to delete the postings amounted to misuse of private information.

Mr. Justice Stephens granted CG the injunction preventing Mr. McCloskey from harassing him by any means. While Facebook was ordered to remove the "Keeping our Kids Safe From Predators 2" page. Finally, Mr. Justice Stephens awarded £15,000 in damages against Facebook and Mr. McCloskey for the postings by Mr. McCloskey, and £5,000 against Facebook for the postings by RS. 

CJEU(J): An agreement on European Union accession to the European Convention on Human Rights must be compatible with EU law

The Court of Justice of the European Union has ruled that the Draft Agreement for the the accession of the European Union (EU) to the European Convention on Human Rights is incompatible with European Union law.

The request for an Opinion, submitted by the European Commission, asked whether:

[...] the [D]raft [A]greement providing for the accession of the European Union to the Convention for Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950 ("ECHR"),] compatible with the Treaties?

In March 2010 the European Commission recommended to the Council of Europe, authorising the opening of negotiations on the Draft Agreement. The Council adopted this recommendation in June 2010 and designated the Commission as Negotiator.

The principles that must be covered by the internal rules of the EU during negotiations in April 2012 were set out in a Supplementary Annex to the Council's Mandate according to the Annex, the internal rules cover:

[...] [one,] the representation of the EU before the E[uropean] C[our]t of H[uman] R[ights; two,] the triggering of the co-respondent mechanism before the [Court] and the coordination rules for the purpose of the conduct of the procedure before the [Court] by the respondent and the co-respondent[; three,] the selection of three candidates for the office of Judge in the [Court; four,] the prior involvement of the Court of Justice, and[; five,] the circumstances in which the EU will agree a position and those in which the Member States will remain free to speak and act as they choose, both in the [Court] and in the Committee of Ministers.  

In April 2013 the Draft Agreement was agreed upon by negotiators.

The Court ruled that the Draft Agreement was incompatible on five grounds.

First, the failure of the Draft Agreement to take account of specific characteristics of EU law is threefold. One, the Draft Agreement did not limit the possibility of EU member states having higher human rights standards than EU law. This, despite the European Court of Justice judgment that member states could not have higher standards than the Charter of Fundamental Rights of the European Union where the law has been harmonised by EU. This rule also applies to the European Convention on Human Rights. But the Draft Agreement failed to take account of this. Two, the Draft Agreement did not provide for the application of the 'mutual trust' rule in Justice and Home Affairs matters. Three, Draft Agreement also failed to rule out the possibility that when applying Protocol 16 to the European Convention on Human Rights, the national courts would ask the European Court of Human Rights to rule on EU law matters before asking the Court of Justice.

Second, the Draft Agreement failed to rule out the possible use of the European Court of Human Rights to settle disputes. This violates Article 344 of the Treaty on the Functioning of the European Union (TFEU), which gives the Court of Justice monopoly on settling inter-state disputes on EU law between EU member states.

Third, the co-respondent mechanism where both an EU member state and the EU could be party to a case at the European Court of Human Rights is incompatible with EU  law on three grounds. One, it would give the European Court of Human Rights the power to interpret EU  law when assessing the admissibility of requests to apply this process. Two, a judgment by the European Court of Human Rights on the joint responsibility of the EU and member states could impinge on member states reservations to the European Convention on Human Rights. Three, the EU should not have the power to allocate responsibility for any breach of the European Convention on Human Rights between the EU and member states, since only the Court of Justice can rule on EU law.

Fourth, the rule in the Draft Agreement on prior involvement of the Court of Justice before the European Court of Human Rights ruled on EU law were incompatible with EU law on two grounds. One, the rules did not reserve the power on whether the Court of Justice has already rule on a matter of the EU. Two, the rules did not permit the Court of Justice to rule on the definitive interpretation of EU law.

Fifth, the rules on the Common Foreign and Security Policy were incompatible with EU law because a non-EU court cannot be given the power of judicial review over EU "acts, actions or omissions". This, despite the Court of Justice having no jurisdiction itself on most Common Foreign and Security Policy matters.

The consequences of the Court of Justice opinion means that EU accession to the European Convention on Human Rights cannot go ahead without amending the draft Agreement. Moreover, any amendments to the draft Agreement will have to be negotiated by all 47 signatories to the Convention.

In 1996, the Court ruled that the European Community (EC) could not accede to the European Convention on Human Rights. The Court ruled that only an amendment to the Treaty could overturn the decision. In 2009, the Lisbon Treaty amended existing treaties, inserting Article 6(2):

The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

This amendment now requires the European Union to accede to the European Convention on Human Rights.

CJEU(J): Obesity may be considered a disability for the purposes of the Equal Treatment in Employment Directive

The Court of Justice of the European Union has ruled that obesity may be considered a disability for the purposes of the Equal Treatment in Employment Directive.

Karsten Kaltoft had been working as a child-minder for the Municipality of Billund in Denmark since November 1996 until Mr. Kaltoft was dismissed in November 2010. However, Mr. Kaltoft was told that the reason for his dismissal was the decline in the number of children, without providing the reasons for selecting him.

In periods throughout his employment with the Municipality, Mr. Kaltoft, with financial assistance attempted to lose weight by attending fitness classes. While the Municipality denies that the issue of obesity provided the basis for the dismissal, Mr. Kaltoft maintained his dismissal is rooted in discrimination due to his weight.

Mr. Kaltoft took a case for damages for discrimination to the Retten i Kolding (District Court of Kolding) in Denmark. The District Court asked the Court of Justice to clarify if EU law includes a self-standing prohibition on discrimination on the grounds of obesity. Alternatively, the District Court asked if obesity can be classified as a disability within the meaning of Equal Treatment in Employment Directive.

In July, Advocate General Niilo Jääskinen observed that nothing in the  Charter of Fundamental Rights of the European Union explicitly refers to obesity as a prohibited ground of discrimination. Therefore, the Advocate General concluded, any prohibition could only exist as part of a general prohibition in the labour market. Moreover, the Advocate General held that the Charter is only binding when a member state implements EU law. The Advocate General also emphasised that EU legislative acts prohibiting discriminatory conduct are addressed to specific grounds of discrimination with definitive subject areas. Therefore, there is no general, stand-alone prohibition on discrimination on the grounds of obesity.

The Court of Justice found that if obesity hinders:

[...] the full and effective participation of that person in professional life on an equal basis with other workers ...

then obesity can fall within the concept of "disability". 

CJEU(J): The processing of personal data on household CCTV may breach EU Data Protection Directive

The Court of Justice of the European Union has ruled that the processing of personal data on a household CCTV may breach the EU Data Protection Directive if the CCTV also monitors public space.

The Court case relates to František Ryneš, a Czech national, who installed CCTV after being subject to attacks by unknown individuals. The CCTV filmed public space and the entrance to the house opposite.

In October 2007 a window in the family home was broken by a shot from a catapult. The CCTV, handed over to the police, made it possible to identify and prosecute two suspects.

However, one of the accused challenged the legality of Mr. Ryneš recording and holding of the images. The Office for the Protection of Personal Data in the Czech Republic found Mr. Ryneš breached data protection laws despite using the CCTV to identify the perpetrators of crime.

Mr. Ryneš appealed the ruling, later dismissed by the Mĕstský soud v Praze (Prague City Court) in April 2012. Mr. Ryneš appealed on a point of law to the Nejvyšši správni soud (Supreme Administrative Court). The Supreme Administrative Court placed a stay on proceedings, asking the Court of Justice if:

[...] on a proper construction of the second indent of Article 3(2) of Directive 95/46, the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, amounts to the processing of data in the course of a purely personal or household activity, for the purposes of that provision.

The Court held that Mr. Ryneš did not breach data protection laws because the CCTV served to identify and prosecute a criminal. However, the Court did suggest CCTV that also monitors public space, even partially, where it is directed outwards from the private setting would breach the Data Protection Directive.

EW: Consumers party to an unregulated agreement are entitled to rights, remedies of a regulated agreement under the CCA insofar as the Act is applicable

The High Court (Commercial) has ruled that Northern Rock Asset Management (NRAM) formerly Northern Rock must pay out compensation to 41,000 former Northern Rock customers because of incorrect wording in Unsecured Together Loan Agreements.

Between 1999 and 2008 Northern Rock offered a product called Together Mortgage. The product allowed borrowers to borrow up to 95% of the value of their home on a secured loan, and in addition, take out a fixed unsecured loan of up to 30% of the value of their home, capped at £30,000.

However, the agreements entered into by consumers between 1999 and 2008 failed to differentiate between regulated and unregulated agreements. The same documentation was used for loans exceeding £25,000 as was used for loans of £25,000 or less.

Northern Rock Asset Management took the case against Jeffery McAdam and Ann Hartley. Both availed of a Together Mortgage in addition to taking out an unsecured loan of £30,000. The case was also taken in an effort to secure a legally binding opinion that its customers with loans in excess £25,000 were not entitled to compensation.

However, Mr. Justice Michael Burton found the rights and remedies under section 77A of the Consumer Credit Act 1974 were applicable to Unsecured Together Loan Agreements. The failure of Northern Rock to indemnify Mr. McAdam and Ms. Hartley under the Act was a breach of its obligations under the Agreement.

The judgment means the public limited company could pay out approximately £258m, or roughly £6,300 per customer.

In 2012, Northern Rock Asset Management had to allocate roughly £270 to repay customers who had borrowed up to £25,000 because the wording in the documents failed to differentiate between regulated and unregulated agreements under the Consumer Credit Act 1974.

EW: Justice Secretary must amend policy on prisoner book ban

The High Court (Administrative) has ruled that the prohibition on sending books to prisoners is unlawful. The prohibition imposed by the Justice Secretary Chris Grayling was overturned by Mr. Justice Andrew Collins, ordering an amendment to the policy on what prisoners can receive.

Mr. Justice Collins in ruling described as "strange" the reference to books as a privilege:

A book may not only be one which a prisoner may want to read but may be very useful or indeed necessary as part of a rehabilitation process.

The challenge to the prohibition was taken by Barbara Gordon-Jones, a 56-year-old serving an indefinite sentence for a number of offences including arson with intent to endanger life. 

Ms. Gordon-Jones, Mr. Justice Collins observed:

[...] has a doctorate in English literature and the books she wishes to read are often such as are not normally required by fellow prisoners.

Her interests include books by Alan Bennett, Monica Ali and the Dialogues of Marcus Aurelius.

Mr. Justice Collins accepted that there was no intention by ministers to prevent access to books with weekly earnings which can be as low as £2.50 meant the prohibition on books stopped short of an outright ban. However, Mr. Justice Collins noted the restrictions on what prisoners can receive from friends and relatives under the amended Incentives and Earned Privileges Scheme was viewed as an outright ban on books:

As I have said, I see no good reason in the light of the importance of books for prisoners to restrict beyond what is required by volumetric control and reasonable measures relating to frequency of parcels and security considerations

The prohibition was imposed by Justice Secretary Chris Grayling a year ago in a crackdown on prisoners' "perks and privileges".

Surrogate, as birth mother, must be registered on birth certificate as the legal mother

The Supreme Court has ruled, by a six to one majority, that the surrogate mother of twins, as the birth mother, is entitled to be registered as the legal mother on the birth certificates. The judgment overturns the High Court ruling by Mr. Justice Abbott in March 2013.

The issues arose from the radical developments in assisted reproduction and were issues for the legislature, not for the courts to address, observed Chief Justice Susan Denham.

The lacuna surrounding particular rights of children born through surrogacy merits the outstanding issues being left to the legislature:

Any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content.

In separate judgments, only Mr. Justice Frank Clarke dissented, while the remaining panel agreed the appeal should be allowed. However, Mr. Justice O'Donnell stressed his decision to allow the appeal was based on the fact that the Civil Registration Act 2004 requires the surrogate mother, as the birth mother, to be registered as the the mother on the respective birth certificates.

The case centers around twins born to a surrogate mother, using sperm and ovum from the genetic parents.

While the genetic father of the twins was registered on the birth certificates, the Registrar of Births refused to register the genetic mother because she was not the birth mother. The Registrar maintained that the surrogate mother must be registered on the birth certificates.

The core issue was the registration of a "mother" under the Civil Registration Act 2004, observed Chief Justice Denham. The Constitution does not provide for a definitive definition of "mother". Nor does the Constitution prevent the development of legislation on surrogacy.

The State relied on the status of the Latin legal maxim, mater semper certa est - the mother is always certain. However, Chief Justice Denham observed that the maxim is not part of Irish common law and the words merely recognise a fact that the woman who gives birth to a child is the mother of the child.

As it stands, neither Irish jurisprudence or existing legislation addresses the outstanding issues on surrogacy arrangements, Chief Justice Denham observed. Citing the lacuna in the law as being the basis for her decision, the appeal was allowed.