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High Court, in proceedings seeking to compel a social media platform to identify the individuals behind one of its user accounts, refers questions to the Court of Justice of the European Union concerning the right to post material anonymously, and the threshold to be met under the General Data Protection Regulation and/or the Charter 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.
Proceedings seek to compel the social media platform, Instagram, to identify the individuals behind one of its user accounts – European law - school authorities apprehend that the now inactive user account had been operated by individuals who are either students or staff members of the school – disciplinary process - procedural history – coarse and vulgar posts over a ten day period referencing aspects of school life - school authorities sought to contact the company providing the social media platform and requested information with a view to identifying the individuals who had operated the user account – proceedings issued - relief sought on an interlocutory basis - motion was listed for further directions – Court indicated that it was considering making a reference to CJEU – school content to rest on the written submissions and did not require a further oral hearing – disclosure order - individuals whose identity the disclosure order is intended to reveal, are not on notice of the proceedings - absence of a legitimus contradictor - duty of candour - costs may ultimately be recoverable from the wrongdoers in the subsequent set of proceedings - jurisdiction to make disclosure orders - availability of a disclosure order is not confined to cases where the alleged wrongdoing is tortious in nature – whether it is necessary that an applicant intends to bring legal proceedings in respect of the alleged wrongdoing - no ongoing mischief alleged - data protection and freedom of expression under EU law - public interest objective which is capable of justifying an interference with the rights to privacy, data protection and freedom of expression – reference made to CJEU - application for the disclosure order was first moved in court more than one year after the user account had been rendered inactive - no evidence before the court that either An Garda Síochána or the Child and Family Agency were sufficiently concerned by the complaints made to them by the school authorities to seek information from Facebook themselves - presents significant legal issues in respect of privacy, data protection and freedom of expression - whether the user of a social media platform, who has chosen to be anonymous, is entitled to an expectation that that choice will be respected absent some countervailing public interest objective in disclosure - expectation of anonymity - expectation of anonymity must yield to the public interest in the prosecution of criminal offences, especially in respect of child abuse - any expectation of anonymity must yield to the public interest in vindicating an individual’s right to their reputation by way of proceedings for defamation - it is far less obvious that the public interest asserted by the school authorities overrides the rights of the students and staff – whether Charter of Fundamental Rights of the European Union implies a right, in principle, to post material anonymously on the internet (subject always to any countervailing objective of public interest) – whether this right disqualified in the case of the students and staff of a secondary school - threshold to be met under the General Data Protection Regulation and/or the Charter 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 – whether it is necessary for the third party seeking disclosure to establish a strong prima facie case of tortious wrongdoing and an intention to pursue legal proceedings – whether the school have a sufficient interest in disciplining its students and staff for their online activities to entitle it to disclosure – whether 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 –
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