Are you entitled to exercise your freedom of expression right anonymously?
This is one of the fascinating questions that the Justice Garrett Simons of the High Court is to send to the European Court of Justice for a determination.
This question, along with others set out below, arise from a High Court application by a school in Limerick-the Salesian Secondary school. The school sought an order from the High Court compelling Facebook/Instagram to disclose who was behind an Instagram account.
An Instagram account was operated for 10 days in October 2019.
The account made coarse and vulgar posts-52 of them-about events and persons at the school. Some of the posts ridiculed school staff and made uncomplimentary comments about the physical appearance and other personal characteristics of certain school staff.
The school wished to discover who was behind the account and contacted Facebook to obtain the identity of those behind the account. Facebook said they would only disclose this information if they had a court order. The school sought a disclosure order from the High Court which led to the Judge noting the significant issues of data protection, freedom of expression, and privacy.
He wants the European Court of Justice to clarify whether the Charter of Fundamental Rights of the European Union
- Imply a right to post material anonymously on the internet, subject to any public interest constraints
- If there is such a right, is it qualified in the case of a school to protect students and staff?
- What threshold is to be met before the social media platform can be compelled to disclose details to identify an anonymous user?
- Does the party seeking disclosure have to establish a strong case of wrongdoing?
- Does the party seeking disclosure have to intend to pursue legal proceedings?
- Does the board of management of a school have sufficient interest in the absence of an intention to pursue legal proceedings?
- Is it necessary to prove that the school environment is disrupted by the online activity?
- Does the affected party have to be put on notice of an application which seeks to identify him with a view to allowing submissions
Judge Simons is to hear both parties before settling the questions to be sent to Europe.
Here is the full decision in Board of Management of Salesian Secondary school (Limerick) and Facebook Ireland Limited.