When Is Facebook Liable For Illegal Content Nether The E-Commerce Directive? Cg V. Facebook Inward The Northern Ireland Courts

Lorna Woods, Professor of Internet Law, University of Essex

Introduction

The ubiquity of social media platforms together with their significance inwards disseminating information (true or false) to potentially broad groups of people was highly unlikely to have got been inwards the minds of the European legislators when they agreed, inwards 2000, the e-Commerce Directive (Directive 2000/31/EC) (ECD). Facebook itself was launched only inwards 2004. Despite the changing times together with technological capabilities, the Commission has decided non to revise the ECD, specifically its condom harbour provisions for intermediaries, inwards its electrical current unmarried digital marketplace programme. Although the ECD seems laid to remain unchanged, the application of the condom harbour provisions raises many hard questions which have got non yet been fully answered at European Union aeroplane yesteryear the Court of Justice. CG v. Facebook ([2016] NICA 54), a decision of the Northern Irish Gaelic Court of Appeal, illustrates approximately of these difficulties together with sure enough raises questions nigh the proper interpretation of the ECD together with its human relationship amongst the Data Protection Directive.

Intermediary Immunity - Legal Framework

The ECD provides immunity from liability for sure ‘information gild service providers’ (ISS providers) on sure conditions. To gain immunity, the ISS provider must

- be an ISS provider inside the price of the ECD; together with

- one of the next applies:

- the provider is a ‘mere conduit’ (Art. 12 ECD);

- provides caching services (Art. xiii ECD); or

- provides hosting services (Art. xiv ECD).

Each i of these 3 categories provides for a different aeroplane of immunity, which seems connected amongst the aeroplane of noesis the ISS provider is assumed to have got of the problematic content. Here Article 14, which deals amongst hosting, is the relevant provision. It provides:

1. Where an information gild service is provided that consists of the storage of information provided yesteryear a recipient of the service, Member US shall ensure that the service provider is non liable for the information stored at the asking of a recipient of the service, on status that:

(a) the provider does non have got actual noesis of illegal activity or information and, every bit regards claims for damages, is non aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such noesis or awareness, acts expeditiously to take away or to disable access to the information.

2. Paragraph 1 shall non apply when the recipient of the service is acting nether the potency or the command of the provider.

3. This Article shall non demeanor upon the possibility for a courtroom or administrative authority, inwards accordance amongst Member States' legal systems, of requiring the service provider to terminate or preclude an infringement, nor does it demeanor upon the possibility for Member US of establishing procedures governing the removal or disabling of access to information.

The recitals to the ECD give to a greater extent than particular every bit to the compass of services protected yesteryear Article xiv together with at that topographic point is a sure amount of instance police delineate on this point, notably Google Adwords (Case C-236/08) together with the Grand Chamber conclusion inwards L’Oreal v. eBay (Case C-324/09). Recital 42 has been pointed to yesteryear the Court inwards these cases every bit relevant for agreement the sorts of activities protected yesteryear the immunity. Recital 42 refers to services of a

mere technical, automatic together with passive nature, which implies that the information gild service provider has neither noesis of nor command over the information which is transmitted or stored.

The ECJ inwards Google Adwords referred to this every bit beingness ‘neutral’ (para 113-4). The Grand Chamber inwards its subsequent L’Oreal conclusion suggested that advice inwards optimising presentation would hateful a provider was no longer neutral (para 114).

The provision protects relevant ISS providers from liability inwards relation to illegal content, provided they have got no noesis (actual or constructive) of the illegal activity or information, together with that if they have got such knowledge, they have got acted expeditiously to take away it. In L'Oreal v eBay the Court of Justice provided a touchstone or examine yesteryear which i tin mensurate whether or non a website operator could hold out said to have got acquired an 'awareness' of an illegal activity of illegal information inwards connector amongst its services, that is whether "a diligent economical operator would have got identified the illegality together with acted expeditiously". The CJEU also held that an awareness of illegal activities or information may larn apparent every bit the termination of an investigation yesteryear the operator itself or where the operator receives notification of such activity. Article xiv does non protect ISS providers from injunctions, or the costs associated amongst whatsoever such injunctions (see Recital 45).

Additionally, Article xv specifies that, for those falling inside Articles 12-14, Member US cannot impose a ‘general obligation’ to monitor content to determine whether content is illegal. There has been a considerable amount of dispute every bit to the human relationship betwixt this provision together with the compass of immunity, especially given the requirements inwards L’Oreal. Recital twoscore notes that ‘service providers have got a duty to act, nether sure circumstances, amongst a thought to preventing or stopping illegal activities’ together with that the immunity provisions ‘should non preclude the evolution together with effective operation, yesteryear the different interested parties, of technical systems of protection together with identification together with of technical surveillance instruments made possible yesteryear digital technology’. The Recitals also state:

(47) Member US are prevented from imposing a monitoring obligation on service providers only amongst observe to obligations of a full general nature; this does non concern monitoring obligations inwards a specific instance and, inwards particular, does non demeanor upon orders yesteryear national government inwards accordance amongst national legislation.

(48) This Directive does non demeanor upon the possibility for Member US of requiring service providers, who host information provided yesteryear recipients of their service, to apply duties of care, which tin reasonably hold out expected from them together with which are specified yesteryear national law, inwards monastic tell to uncovering together with preclude sure types of illegal activities.

The distinction betwixt full general monitoring together with specific monitoring has yet to hold out fully elaborated, together with is an issued much discussed inwards the context of intellectual belongings enforcement, especially every bit regards keeping pirated copies of materials downwards later on taking it downwards inwards the rootage place.

Facts of CG

McCloskey opened a Facebook page inwards August 2012 entitled ‘Keeping Our Kids Safe from Predators’ inwards which he published details of individuals who had criminal convictions relating to sexual offences involving children. This page was non dependent land to whatsoever privacy settings. One private who was so named brought activeness against Facebook together with an interim injunction was issued requiring Facebook to take away the page together with related comments, on the ground that the comments responding to the posting were threatening, intimidatory, inflammatory, provocative, reckless together with irresponsible. This was the XY litigation. Immediately later on the page was removed, McCloskey fix a novel page, Predators 2. CG was identified on this page on 22 Apr 2013; his photograph was published together with at that topographic point were discussions nigh where he lived. Comments included abusive language, tearing linguistic communication – including back upwards for those who would commit violence against CG together with for the exclusion of CG from the community inwards which he lived. The disclosure of CG’s residence was reverse to the seat taken yesteryear the Public Protection Arrangements inwards Northern Republic of Ireland (PPANI), which took the thought that such disclosure interferes amongst the rehabilitation process.

On 26th Apr 2013, CG’s solicitors wrote to Facebook together with its solicitors inwards Northern Ireland, claiming the cloth was defamatory together with that CG’s life was at risk. H5N1 hardcopy of Predators 2 page was enclosed. Facebook’s response was that CG should utilisation the online reporting tool, but CG expressed a wishing non to have got to engage amongst Facebook. By 22 May 2013 Facebook removed all postings on Predators 2, but on 28 May, CG issued proceedings. Subsequently, CG’s solicitors wrote to Facebook complaining that the photograph had been shared 1622 times together with that other Facebook users had included comments threatening violence. They identified the principal URL, but non all such instances which Facebook so requested. This information was provided on third together with fourth Dec together with removed on fourth or fifth December. H5N1 farther reposting of the photographed yesteryear RS occurred on 23 December, stating that this was what a “pedo” looked like. H5N1 missive of the alphabet of claim was transportation to Facebook on eighth Jan 2014, identifying the relevant URLs together with the page was taken downwards on 22 Jan 2014. While CG accepted that the defamation claim was without merit, it was accepted that he was extremely concerned nigh potential violence every bit good every bit the effect on his family.

Judgment at First Instance

The trial justice had to bargain amongst claims against McCloskey, every bit good every bit claims against Facebook. The trial judge, having reviewed the evidence, concluded that McCloskey’s demeanor constituted harassment of CG. The instance against Facebook was based on the tort of misuse of private information. To uncovering that at that topographic point had been such misuse, at that topographic point had to hold out a reasonable expectation of privacy inwards relation to the relevant information which should convey into occupation concern human relationship all the circumstances (relying on JR38 [2015] UKSC 42 together with Murray v. Express Newspapers [2008] EWCA Civ 446). The justice also accepted the submission that the Data Protection Act, together with specifically the category of ‘sensitive data’, provided a useful touchstone every bit to what information could hold out seen every bit private (see Galloway v Frazer together with Google t/a YouTube ([2016] NIQB 7) concerning defamatory together with harassing videos. While this instance is based inwards the particular cultural together with legal context of Northern Ireland, together with raises questions on the pregnant of private information, it also leads of questions nigh the interpretation of European Union laws, notably the ECD together with DPD.

Assuming Article xiv (and its Britain equivalent, Regulation 19) applies, the adjacent inquiry is whether Facebook was on notice. The ECD is soundless on the nature of whatsoever formalities, leaving it to Member US together with manufacture (via self-regulation per Recital 40) to create total inwards the detail. In its 2012 Working Paper, the Commission acknowledged that at that topographic point were diverging views every bit to what notice required, ranging from those who argued that zip less than a courtroom monastic tell should hold out accepted (seemingly thereby focussing on precisely actual knowledge) through to those who suggested that full general awareness of the utilisation of the site for illegal content was sufficient (which covers constructive knowledge) (p. 33-34). It seems at that topographic point are 3 principal issues here:

- Whether notice has to hold out given inwards whatsoever particular format;

- Whether notice has to seat the illegality or whether identifying the problematic content volition do; and

- The human relationship betwixt constructive notice together with Article 15, also bearing inwards heed the obligations of the diligent economical operator.

Facebook argued of course of teaching that a somebody complaining nigh content should utilisation the tools provided yesteryear Facebook together with render rather precise information. The Court, rightly, held that to require a particular format to hold out used but run counter to the aim (particularly amongst reference to the 2002 Regulations) of facilitating the powerfulness of users to brand complaints. It is less clear the seat of the Court amongst regard to the ask to render URLs. The ask to render specific URLs makes it hard for claimants especially those who essay orders for content to hold out taken downwards together with to remain downwards (seen peculiarly inwards the land of intellectual belongings enforcement, for illustration fifty-fifty inwards L’Oreal). In this case, where the Court found Facebook liable CG had provided specific URLs, but the Court is soundless on whether the lack of specific URLs was a determinative factor inwards the other instances. It is submitted that, provided sufficient identifying information nigh the content is provided, precise URLs should non hold out required especially for a diligent economical operator (discussed below).

The Court focussed on the inquiry of whether CG sufficiently identified the ground why the content is illegal. In this, the Court observes that the omission of the right legal characterisation is non determinative; to have got held to the reverse would undermine the powerfulness of claimants without lawyers to have got cloth taken down. The Court moves on to propose that the relevant unlawful activity has to hold out apparent. It does non consider to whom such unlawfulness must hold out apparent, or indeed the prior inquiry of whether the ECD requires precisely notification of content or activity perceived every bit illegal yesteryear the complainant, rather than a justification of why the complainant thinks that. While on the facts of this instance at that topographic point are concerns that CG referred to causes of activeness that were clearly incorrect (e.g, defamation), it is arguable that the Court’s seat needs farther refinement. Certainly the Court’s approach on this aspect seems generous to Facebook inwards price of what it needs to hold out told.

In this regard a number of comments tin hold out made. While, an operator would ask to brand an assessment nigh the legitimacy of a convey downwards request, that is a dissever number from the fact of beingness notified that someone thinks approximately content is problematic. Further, at that topographic point may a earth of deviation betwixt what a human being on the street powerfulness so recognise together with that which the diligent economical operator should recognise together with the particular required for that. Indeed, inwards L’Oreal, the ECJ held:

although such a notification admittedly cannot automatically preclude the exemption from liability provided for in Article 14 of Directive 2000/31, given that notifications of allegedly illegal activities or information may plough out to hold out insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economical operator should have got identified the illegality (para 121-2).

This suggests that a diligent economical operator may non precisely rely on what a complainant said, but may have got to convey steps to create total inwards the blanks. As the Commission reported inwards 2012, it has been suggested yesteryear approximately that the grade to which it is obvious that the activity or information is illegal should play a role inwards this assessment. Some content is to a greater extent than apparently problematic than others. This seat is non incompatible amongst the approach of the Court here: the employment for CG is that an address is non commonly that problematic inwards privacy terms, it was the context (not apparent on the human face upwards of it) that made it so [para 69]. This distinction may have got relevance for the AY litigation, if non the revenge porn instance – depending on the nature of the images.

The finally dot of concern relates to full general monitoring. The rejection yesteryear the Court of the possibility becoming aware of a particular type of content (as from the XY litigation) together with beingness on notice every bit a lawsuit deserves farther examination. This depends on what is meant yesteryear ‘general monitoring’ every bit opposed to a ‘specific’ monitoring obligation, accepted yesteryear recital 47 ECD, together with recognised yesteryear the Commission inwards its 2012 Working Paper (p. 26). It is unfortunate that the Court did non give this to a greater extent than attention. While instance police delineate has made clear that filtering of all content, for example, constitutes full general monitoring (SABAM v Scarlet (Case C-70/10)), it has been argued- principally inwards the context of IP enforcement -that searching for a particular instance of content (re-occurring) is not. Such a broad thought of full general monitoring every bit the Court hither adopted also seems to decrease the infinite inwards which the diligent economical operator acts, raising questions nigh the pregnant of L’Oreal. Note also that the Commission inwards its recent review noted ‘there are of import areas such every bit incitement to terrorism, kid sexual abuse together with abhor vocalisation communication on which all types of online platforms must hold out encouraged to convey to a greater extent than effective voluntary activeness to curtail exposure to illegal or harmful content’ (COM/2016/0288 final). This suggests that the Commission may aspect such platforms to hold out proactive together with non only reactive.

As regards the tort, the Court noted that at that topographic point was no dispute betwixt the parties that this instance was nigh an intrusion, but that the tort would come upwards into play only if at that topographic point was a reasonable expectation of privacy inwards the information, which is a fact sensitive determination. The Court of Appeal noted the populace involvement inwards knowing nigh criminal convictions; it also disagreed amongst the trial courtroom justice nigh the reading across of the categories of sensitive information inwards the DPA. It held:

The fact that the information is regulated for that run does non necessarily larn inwards private’ [para 45].

Reviewing the material, the Court held that the context of harassment was determinative to the finding that CG has a reasonable expectation of privacy inwards the cloth [para 49]. By contrast, RS was protected yesteryear principles of opened upwards justice which allow citizens ‘to communicate the decisions of the criminal justice systems to others’ together with thus CG did non have got a reasonable expectation of privacy inwards relation to that posting [para 51].

The Court so considered whether Facebook could rely on the condom harbour provisions of the ECD together with the 2002 Regulations. It held that the 2002 Regulations ask to hold out understood inwards the lite of Art xv ECD fifty-fifty though it is non formally implemented inwards the UK. According to the Court, Article xv ‘clearly’ applied to Facebook [para 52]. While non expressly stated, the Court’s approach is based on the supposition that Article xiv (safe harbour provisions for those providing hosting services) together with Regulation nineteen of the 2002 Regulations, which implement it, also apply.

The Court so considered the number of notice. Facebook argued that CG had non given proper notice, on the ground that CG had non used Facebook’s online submission process. The Court of Appeal agreed amongst the trial court’s dismissal of this argument, stating, ‘[a]ctual noesis is sufficient nonetheless acquired’ [para 58]. Facebook challenged the approach taken at rootage instance, that Facebook had the resources to uncovering the cloth together with assess it [High Court, para 61]. It was also argued that the agency the High Court approached the inquiry of constructive noesis also implied a monitoring obligation. The trial justice referred to the XY litigation; that litigation summation the letters of CG’s solicitors; together with the litigation together amongst approximately uncomplicated investigation of the profile. The Court of Appeal agreed amongst these concerns. It stated the inquiry every bit being:

Whether Facebook had actual noesis of the misuse of private information … or noesis of facts together with circumstances which made it apparent that the publication of the information was private

before commenting that

[t]he chore would, of course, have got been different if at that topographic point had been a feasible claim inwards harassment made against Facebook [para 62].

It did non elaborate the ground or extent of the difference.

The Court concluded that the XY litigation did non ready Facebook amongst sufficient notice; that it only could practise so if Facebook was dependent land to a monitoring obligation. In whatsoever event, noesis of a propensity to harass did non ready Facebook amongst notice nigh the private information. As regards the correspondence, the Court held that this besides was insufficient to ready Facebook amongst notice. While it referred to the problematic content, it did non refer to misuse of privacy. ‘The correspondence did not, therefore, render actual notice of the ground of claim which is straight off advanced’ [para 64]. The Court also considered that at that topographic point was zip inwards the letters to betoken that the information was private. So, spell ‘the omission of the right cast of legal characterisation of the claim ought non to hold out determinative of the noesis together with facts together with circumstances which ready social networking sites such every bit Facebook amongst liability’, it is necessary to seat ‘a noun electrical load inwards observe of which the relevant unlawful activity is apparent’.

Here, since at that topographic point was no indication inwards the missive of the alphabet of claim that the address was the issue, the Court did non ‘consider that the correspondence raised whatsoever inquiry of privacy inwards observe of the cloth published’. [para 69] By contrast, inwards the missive of the alphabet of 26th November, CG referred to the full general identification of where CG was living together with the threat from paramilitaries. This was sufficient to constitute noesis of facts together with circumstances inwards relation to that particular post. Referring to the Court of Justice inwards L’Oreal, the Court noted that Facebook is obliged to human activeness every bit a diligent economical operator. This dot was non argued; Facebook was found to hold out liable inwards observe of that transportation service for the menstruation 26th November-4/5 December.

The burden of proof is inwards the rootage instance on the claimant to present knowledge; thereafter the ISS must testify it did not.

As regards the DPA, it was agreed that Predators contained personal information together with sensitive personal data, the number was whether Facebook Republic of Ireland could hold out seen every bit dependent land to the Britain DPA. The ECJ rulings inwards Galloway v Frazer together with Google t/a YouTube ([2016] NIQB 7) concerning defamatory together with harassing videos. While this instance is based inwards the particular cultural together with legal context of Northern Ireland, together with raises questions on the pregnant of private information, it also leads of questions nigh the interpretation of European Union laws, notably the ECD together with DPD.

- Whether notice has to hold out given inwards whatsoever particular format;

- Whether notice has to seat the illegality or whether identifying the problematic content volition do; and

- The human relationship betwixt constructive notice together with Article 15, also bearing inwards heed the obligations of the diligent economical operator.

The rootage dot to banking concern annotation is that the Court does non straight address the inquiry of the applicability of Articles xiv together with xv ECD, beyond stating the Article xv clearly applies. Article xv is dependent on the ISS provider providing services that autumn inside i of Article 12, xiii or xiv ECD, amongst Article xiv beingness relevant here. So the inquiry is whether Article xiv ECD (and consequently Regulation nineteen of the 2002 Regulations) applies here. While the text of Article xiv ECD refers to ‘the storage of information provided yesteryear a recipient of the service’, the instance police delineate makes it clear that non whatsoever storage volition do. Rather, the service provider must hold out neutral every bit regards the content, technical together with passive. In this regard, services Facebook render regarding information of involvement to Facebook users (News Feed algorithm together with content recommendation algorithm, every bit good every bit Ad Match services), may hateful that the inquiry of neutrality together with passivity hither is at to the lowest degree worthy of investigation, inwards that Facebook may promote sure content (in the term of L’Oreal, para 114). Of course of teaching inwards Netlog (Case C-360/10), the Court of Justice held that a social media platform could practise goodness from Article 14, but this does non hateful that all volition – much volition depend on the facts (see eg Commission 2012 Working Paper on trust inwards the digital unmarried marketplace (SEC(2011) 1641 final, accompanying COM(2011) 942 final).

Assuming Article xiv (and its Britain equivalent, Regulation 19) applies, the adjacent inquiry is whether Facebook was on notice. The ECD is soundless on the nature of whatsoever formalities, leaving it to Member US together with manufacture (via self-regulation per Recital 40) to create total inwards the detail. In its 2012 Working Paper, the Commission acknowledged that at that topographic point were diverging views every bit to what notice required, ranging from those who argued that zip less than a courtroom monastic tell should hold out accepted (seemingly thereby focussing on precisely actual knowledge) through to those who suggested that full general awareness of the utilisation of the site for illegal content was sufficient (which covers constructive knowledge) (p. 33-34). It seems at that topographic point are 3 principal issues here:

- Whether notice has to hold out given inwards whatsoever particular format;

- Whether notice has to seat the illegality or whether identifying the problematic content volition do; and

- The human relationship betwixt constructive notice together with Article 15, also bearing inwards heed the obligations of the diligent economical operator.

Facebook argued of course of teaching that a somebody complaining nigh content should utilisation the tools provided yesteryear Facebook together with render rather precise information. The Court, rightly, held that to require a particular format to hold out used but run counter to the aim (particularly amongst reference to the 2002 Regulations) of facilitating the powerfulness of users to brand complaints. It is less clear the seat of the Court amongst regard to the ask to render URLs. The ask to render specific URLs makes it hard for claimants especially those who essay orders for content to hold out taken downwards together with to remain downwards (seen peculiarly inwards the land of intellectual belongings enforcement, for illustration fifty-fifty inwards L’Oreal). In this case, where the Court found Facebook liable CG had provided specific URLs, but the Court is soundless on whether the lack of specific URLs was a determinative factor inwards the other instances. It is submitted that, provided sufficient identifying information nigh the content is provided, precise URLs should non hold out required especially for a diligent economical operator (discussed below).

The Court focussed on the inquiry of whether CG sufficiently identified the ground why the content is illegal. In this, the Court observes that the omission of the right legal characterisation is non determinative; to have got held to the reverse would undermine the powerfulness of claimants without lawyers to have got cloth taken down. The Court moves on to propose that the relevant unlawful activity has to hold out apparent. It does non consider to whom such unlawfulness must hold out apparent, or indeed the prior inquiry of whether the ECD requires precisely notification of content or activity perceived every bit illegal yesteryear the complainant, rather than a justification of why the complainant thinks that. While on the facts of this instance at that topographic point are concerns that CG referred to causes of activeness that were clearly incorrect (e.g, defamation), it is arguable that the Court’s seat needs farther refinement. Certainly the Court’s approach on this aspect seems generous to Facebook inwards price of what it needs to hold out told.

In this regard a number of comments tin hold out made. While, an operator would ask to brand an assessment nigh the legitimacy of a convey downwards request, that is a dissever number from the fact of beingness notified that someone thinks approximately content is problematic. Further, at that topographic point may a earth of deviation betwixt what a human being on the street powerfulness so recognise together with that which the diligent economical operator should recognise together with the particular required for that. Indeed, inwards L’Oreal, the ECJ held:

although such a notification admittedly cannot automatically preclude the exemption from liability provided for in Article 14 of Directive 2000/31, given that notifications of allegedly illegal activities or information may plough out to hold out insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economical operator should have got identified the illegality (para 121-2).

This suggests that a diligent economical operator may non precisely rely on what a complainant said, but may have got to convey steps to create total inwards the blanks. As the Commission reported inwards 2012, it has been suggested yesteryear approximately that the grade to which it is obvious that the activity or information is illegal should play a role inwards this assessment. Some content is to a greater extent than apparently problematic than others. This seat is non incompatible amongst the approach of the Court here: the employment for CG is that an address is non commonly that problematic inwards privacy terms, it was the context (not apparent on the human face upwards of it) that made it so [para 69]. This distinction may have got relevance for the AY litigation, if non the revenge porn instance – depending on the nature of the images.

The finally dot of concern relates to full general monitoring. The rejection yesteryear the Court of the possibility becoming aware of a particular type of content (as from the XY litigation) together with beingness on notice every bit a lawsuit deserves farther examination. This depends on what is meant yesteryear ‘general monitoring’ every bit opposed to a ‘specific’ monitoring obligation, accepted yesteryear recital 47 ECD, together with recognised yesteryear the Commission inwards its 2012 Working Paper (p. 26). It is unfortunate that the Court did non give this to a greater extent than attention. While instance police delineate has made clear that filtering of all content, for example, constitutes full general monitoring (SABAM v Scarlet (Case C-70/10)), it has been argued- principally inwards the context of IP enforcement -that searching for a particular instance of content (re-occurring) is not. Such a broad thought of full general monitoring every bit the Court hither adopted also seems to decrease the infinite inwards which the diligent economical operator acts, raising questions nigh the pregnant of L’Oreal. Note also that the Commission inwards its recent review noted ‘there are of import areas such every bit incitement to terrorism, kid sexual abuse together with abhor vocalisation communication on which all types of online platforms must hold out encouraged to convey to a greater extent than effective voluntary activeness to curtail exposure to illegal or harmful content’ (COM/2016/0288 final). This suggests that the Commission may aspect such platforms to hold out proactive together with non only reactive.

Perhaps the most important point, together with i on which a reference should maybe have got been made, is the human relationship betwixt the ECD together with DPD, a dot yet non dealt amongst inwards English linguistic communication police delineate (see Weltimmo (Case C-230/14) were argued before the Court. The Court did non have got the submission that Google Espana was limited to its particular facts together with the concern that the protection offered yesteryear the Data Protection Directive would hold out undermined if it excluded out of European Union information controllers. The Court hither noted that Weltimmo inwards fact built on the approach inwards GoogleSpain. It concluded that Facebook is a information controller established inwards the Britain for the purposes of the DPA. Although the Court accepted that the ECD does non comprehend information protection, together with this is reflected inwards Regulation 3 of the 2002 Regulations, the Court held at para 95:

The starting dot has to hold out the affair covered yesteryear the e-Commerce Directive which is the exemption for information gild services from the liability to pay damages inwards sure circumstances …We practise non consider that this is a inquiry relating to information gild services covered yesteryear the before Data Protection Directive together with accordingly practise non have got that the compass of the exemption from damages is affected yesteryear those Directives.’

Comment

This instance is i of a number coming through the Northern Irish Gaelic courtroom arrangement regarding different types of problematic content together with the responsibleness of social media platforms to convey activeness against such content. Shortly before this instance was handed down, the High Court handed downwards its conclusion inwards J20 v Facebook Republic of Ireland Ltd ([2016] NIQB 98). Other cases are working their agency through the system: AY v Facebook (Ireland) Ltd ([2016] NIQB 76), concerning naked images of a schoolhouse daughter on a ‘shame page’; MM v BC, RS together with Facebook ([2016] NIQB 60), concerning revenge porn; together with Galloway v Frazer together with Google t/a YouTube ([2016] NIQB 7) concerning defamatory together with harassing videos. While this instance is based inwards the particular cultural together with legal context of Northern Ireland, together with raises questions on the pregnant of private information, it also leads of questions nigh the interpretation of European Union laws, notably the ECD together with DPD.

- Whether notice has to hold out given inwards whatsoever particular format;

- Whether notice has to seat the illegality or whether identifying the problematic content volition do; and

- The human relationship betwixt constructive notice together with Article 15, also bearing inwards heed the obligations of the diligent economical operator.

Perhaps the most important point, together with i on which a reference should maybe have got been made, is the human relationship betwixt the ECD together with DPD, a dot yet non dealt amongst inwards English linguistic communication police delineate (see Mosley v Google [2015] EWHC 59 (QB)). The Court accepted fairly readily that Facebook (Ireland) falls nether the Britain DPA, but so insists that despite the fact that information protection is excluded from the land of application of the ECD, that Facebook pages together with comments brutal inside the “matter covered yesteryear the e-Commerce Directive” which render a “tailored solution for the liability of [ISS providers] inwards the particular circumstances” laid out inwards the ECD. It did non explicate why, beyond asserting that the ECD condom harbour provisions practise ‘not interfere amongst whatsoever of the principles inwards relation to the processing of personal data, the protection individuals ... or the complimentary displace of data’ [para 95]. In this assessment, the Court overlooked the fact that nether the DPD a remedy must hold out provided to individuals, so every bit to brand effective their rights and, that the protection awarded to information subjects should non vary depending on the machinery used for that processing. Furthermore, Recital xiv to the ECD elaborates that

The protection of individuals amongst regard to the processing of personal information is entirely governed yesteryear Directive 95/46/EC …..the implementation together with application of this Directive should hold out made inwards total compliance amongst the principles relating to the protection of personal data.

Whilst a Member State was complimentary to render to a greater extent than far-reaching to protection to intermediaries, this liberty reaches its bound when it conflicts amongst approximately other harmonised surface area of European Union law, such every bit information protection. The Court’s seat on this point, together with especially its reasoning, inwards the lite of the price of both directives, is non convincing.

In sum, the outcome – liability for Facebook on i aspect of the content posted – sounds on the human face upwards of it a narrowing of immunity. The reality points inwards a different direction. While at that topographic point are a number of problematic issues amongst which the courtroom had to deal, the impact of this judgment lies inwards the statements of full general regulation which the Court made. Significantly, these brutal into areas ultimately governed yesteryear European Union law, rather than purely domestic matters. It is far from sure that those issues are clearly determined at European Union level, nor that the Court’s assessment hither is complimentary from doubt.

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When Is Facebook Liable For Illegal Content Nether The E-Commerce Directive? Cg V. Facebook Inward The Northern Ireland Courts

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