In JR20 v Facebook Ireland Ltd [2017] NICA 48, the Court of Appeal was asked to rule on whether the respondent, J20, could have a reasonable expectation of privacy in relation to the religious affiliation of his adult children. At first instance, Colton J had ruled in favour of J20 and awarded him £3,000 general damages in respect of Facebook Ireland’s misuse of private information. Facebook appealed [1].

The action related to a series of Facebook posts from September 2013 on two Facebook pages, entitled Irish Blessings and Belfast Banter, which had all been removed by October 2013 J20 [2] after an ex parte injunction had ordered their deletion [13].

Of particular interest to students of law and religion, on appeal, Facebook challenged the findings that two comments which referred to J20’s children on the Irish Blessings page amounted to the tort of misuse of J20’s private information [3]: in particular, two posts on 12 September 2013:

“(i) My daughter has three children to this scum woman beating snake who can’t string two words together, he can only mumble. He deleted his children off his fb page because their names are Catholics. He must be full of Diazepam cause he is the biggest coward I have had the misfortune to meet. Love the page by the way.

(ii) He has Catholic children who he doesn’t bother with. Probably because they are Fenian” [9].

Given that the two posts in question referred to the religion of J20’s children, Facebook argued:

• that the action had been brought by J20 himself, not by the children nor by J20 as their next friend and that J20 could not have a reasonable expectation of privacy in respect of his children’s religious affiliation;
• that the none of the children were minors at the time of the impugned posts;
• that the two posts had been made by the children’s family members [31(c)] and therefore were only published to those who sought to access and read the comments on that particular photograph;
• that the children had not been identified and;
• that there was no evidence of any risk of harm. [27]

It was argued for J20 that Colton J’s finding of fact should not be interfered with by an appellate court. There was no proposition of law that would support the contention that a breach of Article 8 ECHR (respect for private and family life) could not occur in relation to a post made by a family member, nor that the protection of the relationship between parent and child under Article 8 only existed where the child was a minor. His counsel relied in particular on a passage in King v Sunday Newspapers Ltd [2011] NICA 8 in which Girvan LJ had stated that an individual normally had a reasonable expectation of privacy in respect of information relating to his private, intimate and family relationships, which were multifaceted [31]. Colton J had concluded at paragraph [34] of his judgment that J20 had a reasonable expectation of privacy in respect of the religion of his children [31].

Morgan LCJ disagreed. He noted that it was not disputed that a person was entitled to have his or her reasonable expectation of privacy protected:

“In this case, the respondent particularised the information which was said to give rise to a reasonable expectation of privacy as being the religion of three of his children …” [32].

However, the oldest of the children was 31, the respondent had not seen the children since 1997 or 1998 and the youngest was at least 16. There had been no evidence before the Colton J from the children themselves or about their circumstances [33].

As to whether or not a person’s religion was a private matter for the purpose of the alleged tortious conduct:

“A person’s identity and appearance are unlikely to be capable of misuse in the context of the tort because as a matter of everyday occurrence people engaging with the person will be aware of those factors. There is nothing private about them. The same may also be true of a person’s religion. Many religious people engage in regular acts of worship in the company of large numbers of worshippers of a similar persuasion. Where that is the case the publication of the fact that the person adheres to that religion would almost invariably not be private information. Whether or not to disclose one’s religious persuasion, if any, is a matter for the person holding that opinion. That is an aspect of personal autonomy” [34].

The Court allowed Facebook’s appeal in relation to the publication of the religion of the respondent’s three children and reduced the award of damages from £3,000 to £500 [45].

So the answer to the question posed in the title would appear to be “no”.