Overview of internet intermediary and media law cases for Northern Ireland in 2019: Part 1

It was a relatively quiet year, with only three published judgments from the Northern Ireland courts (the same as in 2018). There was one Court of Appeal case, involving reporting restriction orders, with the Crown Court and High Court delivering judgments dealing with a source disclosure order and 'revenge porn' images.

In 2019, only three writs of summons were issued against internet intermediaries (all of which concerned Facebook) in the Northern Ireland High Court. This is a decrease on previous years, with six cases issued in 2017 and eight cases in 2018 (see our previous overview here).

A particularly interesting development was the publication of Sir John Gillen's report into the law on serious sexual offences in Northern Ireland. The report's recommendations have potentially far-reaching implications for media reporting and the removal of content from social media platforms.

Source disclosure

In R v McCrory (co-accused Duffy and Fitzsimons) [2019] NICC 3 an application was brought against the Sunday World Newspaper by a defendant who had been charged with a number of offences (including attempted murder, directing terrorism and membership of a proscribed organisation.) Two articles were published in the newspaper concerning the defendant and his co-accused. The first article claimed to quote from covert audio recordings that were being relied on by the prosecution. The second article alleged that highly sensitive security documents seen by the newspaper proved that "a trio of alleged terrorists were bugged."

The application was brought on the grounds that the articles suggested the newspaper was in possession of materials which differed from those disclosed in the criminal proceedings. The defendant was therefore seeking disclosure of the identity of the source who provided information to the newspaper, and copies of the documents and recordings referenced in the articles.

Mr Justice Colton refused the defendant's application, as he was satisfied that there were no relevant documents that could be disclosed. The journalist gave evidence that she met with the source who showed her a '15 page disclosure document' but that she took no notes of the document nor was she provided with any copies.

It was also held that the defendant had not met the statutory test under section 51A of the Judicature (NI) Act 1978 for disclosure of the source's identity. The court was not satisfied that the source was likely to be able to provide evidence or produce any material document. In reaching this conclusion, the judge referred to the fact the prosecution had offered the defendants' experts access to the original tape recordings, and that the alleged discrepancies between the documents disclosed in the criminal proceedings and the contents of the articles were insignificant. The court also provided a reminder of the high threshold in place in respect of source disclosure, in particular, the 'presumptive right' of the newspaper and journalist to maintain the confidentiality of their source.

Internet intermediaries

MM v BC, RS and Facebook Ireland Ltd [2019] NIMaster 5 concerned intimate images of the plaintiff which had been uploaded and disseminated on Facebook Messenger by her ex-partner without consent. The plaintiff sought leave to amend the pleadings to add claims against Facebook for breach of the Data Protection Act 1998, negligence and misuse of private information. This centred on the plaintiff's claim that Facebook had greater technical ability to assist in locating and removing the images than was used at the time of her complaint.

Facebook objected to the plaintiff's application, claiming that the new causes of action were unsustainable under Regulation 19 of the E-Commerce Regulations 2002. Among other things, Facebook argued that the plaintiff had only provided actual knowledge of this claim when she issued the present application, and the assertion that it had failed to expeditiously assist carried little weight, as it was not supported by the evidence.

Master McCorry, delivering the judgment, held that the plaintiff could amend the pleadings to add further causes of action. When determining if actual knowledge had been provided for the purposes of Regulation 19, the Master relied on CG v Facebook Ireland Ltd [2016] NICA 54 and in particular whether the plaintiff had identified "a substantive complaint in respect of which the relevant unlawful activity is apparent" [16]. As the plaintiff had provided certain information, albeit not the specific URLs, the Master considered that the plaintiff could at least establish an arguable case that a substantive complaint had been made.

The court's findings on the particular facts of a case will determine whether a substantive complaint has been properly identified. In this case, the plaintiff notified Facebook of the names of the individuals who had posted the material, when they did it, the nature of that material and the distress caused. While the relevant URLs were not provided to Facebook, the plaintiff claimed that she was unable to access these, as the unlawful content had been disseminated by Facebook Messenger. Given the conflicting affidavit evidence, the Master refrained from reaching any findings of fact, deferring this issue as a matter for the trial judge.

Further issues surrounding notification of unlawful content are considered in Sir John Gillen's published report. The report's findings and the Court of Appeal's judgment dealing with reporting restriction orders will be looked at in Part 2 of this post.

For further information please contact Ciaran O’Shiel, senior associate, or Charlotte Turk, solicitor, in the Media Litigation & Dispute Resolution team at A&L Goodbody.

Date published: 20 February 2020