A legal dispute over efforts by a school to find out who is behind a closed down Instagram account which made "coarse and vulgar" remarks about certain staff and students is to be referred to the European Court of Justice (ECJ).
The case rauses significant legal issues concerning the rights to privacy, freedom of expression and data protection, Mr Justice Garrett Simons said.
Salesian Secondary School in Limerick brought a High Court application seeking an order that Facebook Ireland, owners of Instagram, reveal the identity of the person or persons behind the account.
On Wednesday, Mr Justice Simons said he was referring a number of questions on the case to the ECJ for a preliminary ruling.
The court heard the account, which had been active for about 10 days in October 2019, had a series of around 52 posts, consisting of photographs or other images with “supposedly humorous text” superimposed.
The photos were not of anyone in or associated with the school and were sourced from the internet but the text with them linked individuals and events at the school, much of it “coarse and vulgar”, Mr Justice Simons said.
In some instances, the content ridiculed members of the school’s staff by reference to their personal appearance, weight and sexuality, the judge said.
In other instances, the posts reference aspects of school life, such as, for example, the high cost of food on campus and a change to the structure of the timetable.
The judge said it was alleged by the school that a named student has been ridiculed or mocked, but no detail whatsoever has been provided on affidavit as to what was being referred to in that instance.
The account also featured the school crest and name and referred to its official website.
“Given the coarse and vulgar content of the posts, however, it is inconceivable that anyone viewing the user account would mistake it for an ‘official’ school account”, the judge said.
The school authorities became aware of its existence within days of it first being activated and when the school’s solicitor posted a series of messages on the account operators removed the published content the next day.
After getting the password to the account from one student, the school was able to establish 21 students had been in communication with those operating the account.
The judge said the school authorities were especially concerned about the content of two messages which had a sexual element but it was accepted by the school the messages may have been intended to be sarcastic.
‘Freedom of expression’
The matter was also reported to the Garda and the Child and Family Agency but there was no evidence before the court as to what steps, if any, these authorities considered necessary.
When they contacted Facebook seeking the identity of the operators, Facebook gave its standard response for most, though not all such situations, that it would only do so with a court order. The school applied to the court for the order.
Mr Justice Simons said the disclosure application presented “significant legal issues in respect of privacy, data protection and freedom of expression”.
He was proposing to ask the ECJ to decide whether rights conferred under Articles 7,8, and 11 of the Charter of Fundamental Rights of the European Union imply a right, in principle, to post material anonymously on the internet subject always to any countervailing objective of public interest.
The court is asked, If this is so, if that right is qualified in the case of the students and staff of a secondary school.
It is also being asked what threshold is to be met under the Charter or GDPR before the provider of a social media platform can be compelled to disclose, to a third party, information which would identify an otherwise anonymous account user.
Also is it necessary for the third party seeking disclosure to establish a strong prima facie case of wrongdoing and an intention to pursue legal proceedings. Alternatively, does the board of management of a secondary school have a sufficient interest in disciplining its students and staff for their online activities to entitle it to disclosure, even in the absence of an intention to pursue legal proceedings.
And if so, is it necessary to establish that the online activities are disruptive to the school environment.
Furthermore, the ECJ is asked if there is any necessity for a national court to attempt to put the affected party on notice of an application which seeks to identify the operators of an otherwise anonymous user account.
For example, should the national court direct that the social media platform notify the party and inform them that they have an opportunity to make submissions anonymously to the court.
The judge said he will hear the parties on those questions for referral next month.