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EU court asked to rule on right to online anonymity

Out-Law News | 26 May 2021 | 6:45 pm | 2 min. read

The right to online anonymity is to be tested in a case to be referred to the EU’s highest court.

The High Court in Ireland wants the help of the Court of Justice of the EU (CJEU) in determining how to balance competing fundamental rights individuals enjoy in the EU, specifically where their rights to privacy, the protection of their personal data and freedom of expression is trumped by public interests in the disclosure of their identity.

The Irish court is in the process of finalising the wording of questions it wants to put to the CJEU in a case in which the board of management at Salesian Secondary College, a school in Limerick, is in dispute with Facebook Ireland. The school wants Facebook to disclose the identity of individuals behind an Instagram account to enforce its own social media code of conduct, while Facebook has said it could not disclose user information to a private third party without a court order or a request to do so from law enforcement.

The case revolves around 52 posts made from an Instagram account over an 11 day period in October 2019. The judge, Mr Justice Garrett Simons, described some of the content as “coarse and vulgar”.

The judge said that the account operators had used the school’s address, crest and name without the school’s permission, and also referred to its website, but that it was “inconceivable that anyone viewing the user account would mistake it for an ‘official’ school account”.

In his ruling, Mr Justice Garrett Simons outlined the four requirements that must be met before a disclosure order can be granted.

First, an applicant must provide the court with evidence that, at least on the face of it, demonstrates wrongdoing. Second, the court must be satisfied that the disclosure order is necessary for, and proportionate to, a legitimate aim. Third, the written statement grounding the application must explain the precise purpose for which the disclosure order is sought. Lastly, if granted, a disclosure order will be made conditional on an undertaking that the information disclosed will not be used for any purpose other than seeking redress in respect of the wrongs complained of.

Dublin-based Michael Finn of Pinsent Masons, the law firm behind Out-Law, who specialises in tech dispute resolution, said: “The European courts, and the transnational laws which they interpret and enforce, recognise that individual rights, such as the right to anonymity, must be balanced against other interests. Limitation on these rights is only permitted to the extent that such restrictions are provided for by law, necessary, proportionate and pursue a countervailing public interest objective.”

“The most obvious example of an acceptable limitation on individual rights occurs where competent national authorities seek the disclosure of personal information for the purposes of the prevention, investigation, detection and prosecution of criminal offences. However, the courts have also previously permitted the granting of disclosure orders where an anonymous wrongdoer is inflicting a civil harm on a party, such as where a wrongdoer is defaming the applicant or infringing their copyright,” he said.

“In this case, the balance of rights and interests arise in a different context altogether, because the purpose of the disclosure order sought by the school is to obtain information for the purposes of pursuing an internal disciplinary response. The High Court indicated that the case law put before it did not address the specific question of  whether those purposes justify an interference with an individual’s rights to privacy, data protection and freedom of expression, so it is seeking the CJEU’s help in interpreting what the right balance of interests is,” Finn said.

The final questions to be put to the CJEU by the High Court in Ireland are likely to be set next month after the parties in the case have had the opportunity to make submissions on the Irish court’s proposed wording of them. It is likely that the CJEU will not rule on the case until some time in 2022.