The plaintiff brought claims alleging harassment and misuse of private information in relation to a series of postings about him on three web pages that the defendant hosted.  They included photographs of the plaintiff with numerous captions all related to flag protests in Belfast in 2013.

In applying the legal test for harassment the court focused on whether or not, objectively judged, the postings were ‘oppressive and unacceptable’ and held that the posts were insufficient to meet the definition. In analysing the relevant case law, the court noted that pursuant to the Harassment (Northern Ireland) Order 1997 a claimant would have to demonstrate that the conduct was of such gravity as to justify the sanction of criminal law and was not merely distasteful or unreasonable.

The defendant was, however, held liable for the tort of misuse of private information with £3,000 damages awarded against Facebook.

Practical Lessons

Claims of harassment by employees are now an increasing concern for employers, given the popularity of social media. Cases such as Teggart v TeleTech UK Ltd NIIT/704/11 demonstrate how certain conduct between employees even outside work can amount to harassment and employers need to be aware how to deal with it within a disciplinary context.

However, this case is particularly relevant for its discussion of when employers may be held vicariously liable for harassment between employees. A claimant would initially have to demonstrate that there was a ‘close connection’ between the employer and the alleged conduct but, if that hurdle was satisfied, an employer could potentially incur liability.

However, there is no question that the bar is set high for a claimant to be successful and even the most distasteful comments or unpleasant, bad tempered behaviour of an employee would not incur liability for the employer since these might never amount to criminal offences. Nevertheless, a workplace policy on bullying and harassment is certainly a good idea and the LRA have published a ‘Model Policy’ which should prove instructive.
https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2016/%5b2016%5d%20NIQB%2098/j_j_COL10121Final.htm

Costs hearing:
https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2017/[2017]%20NIQB%203/COL10157Final.htm

LRA Advice on Social Media and the Employment Relationship:
https://www.lra.org.uk/publications/agency-publications/advice-and-guidance-on-employment-matters/advisory-guides/advice-on-social-media-and-the-employment-relationship

Legal-Island's 'Data Protection Update 2017: Are You GDPR-Ready?' event, in association with Pinsent Masons LLP, is on 26th April:
https://www.legal-island.com/event/data-protection-update-2017-are-you-gdpr-ready/