A Northern Ireland court recently discussed the confidentiality of Facebook comments in . These proceedings related to failed investments by the plaintiffs made through the defendant in his capacity as a solicitor. Following a hearing on the matter, Mr. Giambrone posted the following comment on his Facebook site, “they thought they knocked me down, now they will see the full scale of my reaction. F*** them, just f*** them. They will be left with nothing.”

On the basis of this comment, a Mareva Injunction, which prevents the liquidation of assets, was obtained against Mr. Giambrone. In response, the defendant suggested that using his comment in this way constitutes a breach of confidence since he ensured that his profile was accessible to “friends” only.

The court stated that even if the post was confidential, such a determination would not preclude it from disclosure as part of the discovery. The court went on, however, to comment that notwithstanding their acceptance of this post as evidence, the use of his comment in order to obtain an injunction does not constitute a breach of confidence.

The test for breach of confidence in Ireland requires that the information be:

(1) Confidential and/or private, and

(2) The plaintiffs must have known that it was confidential and/or private.

The court determined that the information was not confidential because it was posted to the Internet and therefore in the public domain. Even if the comment was only accessible to his “friends” it was posted with the knowledge that his "friends" could forward the post to anyone. Regarding the second stage of the analysis, when someone receives information and knows or ought to know that it is fairly and reasonably confidential, a duty of confidence arises. The court determined that none of his "friends" could have understood that this comment bound them to a duty of confidence and were more likely to the come to the conclusion that this post was a statement of defiance. As a result, it was decided that the use of this comment to obtain an injunction would not constitute a breach of confidence.

In Canada the test for breach of confidential information is drawn from . This is a three-part test, which requires:

(1) The information was confidential (based on an objective standard),

(2) The information was communicated in a relationship of confidence (express, implied by customs, or implied by law), and

(3) The information was misused by the party to whom it was communicated

The similarities between the tests make it likely that no breach of confidence would have been found, had the case been determined by a Canadian court. Information will be considered confidential if it is subject to measures to protect its secrecy; however, simply limiting your profile so that only “friends” can view comments may not be enough to be considered confidential on an objective standard. Additionally, a Facebook comment is unlikely to produce an express or implied relationship of confidence. While “misuse of information” may be found, as misuse has been understood as being any use not requested by the confider, it appears that this allegation would likely fail the first two requirements of this test.

This case serves as another demonstration of the possibilities for legal liability that are found on the Internet. It is essential to recognize that although it is easy to believe that only your friends will be reading your posts and comments, any information you provide on social media sites are likely to be considered in the public domain.  Before posting comments on your friend's Facebook wall, it may be worth taking a moment to consider whether you are willing to see it again in a court of law.

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Of course, Ireland is not the only place where 'copyright reform' is being discussed. The neighbouring UK, for one, has had a pair of major reports (Gowers in 2006 and last year), with further work now taking place on translating some of the recommendations into legislation. Readers of this blog will be more than familiar with the Canadian debate of the last decade. However, the terms of reference of the Irish review are worth thinking about, as they do mark the Irish process out as distinctive. It's probably no surprise that there is a specific reference to identifying and responding to 'barriers to innovation', given the attempts by the Irish government to promote ICT (for indigenous industry and inward investment) and Ireland's current economic troubles. And as with the Hargreaves process in the UK, the Committee (made up of two law professors and a solicitor) was asked to look at the question of fair use.

The discussion paper does all of this, and more. It drew upon the responses to an initial call for submissions (which are published here) and a lively public meeting. 86 (!) questions are asked in the discussion paper (for a second round of comments, which closes this month), with the last being 'have we forgotten anything?'. Although firm conclusions have not yet been formed (for example, on a fair use test vs new statutory exemptions), draft statutory language has been included in various cases. The Committee is also floating some proposals of its own, such as that for a Copyright Council of Ireland. Such a Council would be independent but recognised by statute (along the lines of the new ), and might deal with licensing, alternative dispute resolution, public awareness, and best practices, as well as being a forum for discussion (e.g. between rightsholders, users, libraries and others). The report also reminds us of one of the most powerful (and underappreciated) provisions of Irish copyright law, that acts permitted under the Act are permitted 'whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act' (section 2(10) of the 2000 Act). The Committee asks whether this could be strengthened further by declaring all such terms or conditions void.

Readers might be particularly interested in the reviews of how other jurisdictions have tackled problems, and the Committee has carried out particularly extensive searches of foreign law. As such, draft clauses on issues like parody, non-commercial user-generated content, and data mining are informed by Canadian and Australian proposals, in particular. In other cases, the report returns to core sources (e.g. the Berne Convention) and presents new, provocative clauses. One such example is draft clause 106E, on 'innovative works'. Chapter 10 of the report sets out the merits and demerits of legislating for fair use, complete with a lengthy review of the legal and economic research on the subject. Israel, Singapore, and the Philippines are discussed. It's likely that the resulting draft clause 48A will draw plenty of comments. What do IP Osgoode readers think of it?

Technology is also a recurring theme. There are proposals (again, for comment rather than a confirmed view) on the status of Internet links to other Internet sources,'marshalling' of news, back-up copies (i.e. of material other than computer programs, which is already OK), distance learning, and format shifting by heritage institutions (such as libraries or archives). Technology is also a source of some controversy, and not long before the publication of the discussion paper, things became a little more complicated. The Irish government proposed (and ultimately adopted) secondary legislation, in response to a 2010 High Court decision () that Irish law did not provide for injunctions against intermediaries, in a case brought by rightsholders against an ISP. The consideration of this legislation (dubbed and a threat to Ireland's reputation as a tech-friendly place by its critics, defended as by its supporters) brought one particular copyright issue right into the centre of public debate. There has been some confusion about the two processes, but we can at least hope that the degree of interest in copyright law will increase the range and quality of submissions to the Committee.

Daithí Mac Síthigh is a lecturer in law and director of the LLM Information Technology & Intellectual Property law at the in the UK. He blogs at .

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