, Partner. For more information contact
Case Summary and Outcome
The High Court of Ireland refused to order that Facebook take down content posted by a third-party user and prevent others from posting the same content. However, the High Court did grant an order that was agreed between the parties that Facebook should disclose information to help identify the user. A Ugandan lawyer sought these orders in relation to alleged defamatory posts made by an anonymous Facebook user accusing him of bribery and political subterfuge. The High Court declined to grant two of the injunctions due to the “reasonable likelihood” that Facebook would succeed with a defense of “innocent publication” as the host of the content, and the fact that the injunction was unlikely to serve any practical purpose. Nonetheless, the judge expressed his unease with the situation pertaining under Irish law that seemed to leave a plaintiff without a remedy in cases where defamatory publication is online, and made by an unidentifiable user beyond the jurisdiction of the court.
Facts
Between March 17 and March 24, 2016, the Facebook account of pseudonymous user “Tom Voltaire Okwalinga” (TVO) published three articles about a Ugandan lawyer, Fred Muwema, on a Facebook page. TVO regularly wrote and shared materials about social and political matters in Uganda. Mr. Muwema alleged that these articles were defamatory because they “falsely” accused him of (i) accepting a large bribe ($260,000), (ii) staging a break in of the premises of his own law firm in order to jeopardise a presidential election and petition, and (iii) being constantly guarded by armed forces. Mr. Muwema argued that these posts, and a number of subsequent comments and posts, exposed him and his law firm to condemnation and ridicule.
On March 22, 2016, the lawyer notified Facebook’s subsidiary in Ireland about the allegedly defamatory posts and requested that they be removed from the site. The company then responded that his claim in defamation should not be directed at them as they did not publish the posts. Instead, Facebook argued that the claims should be addressed to the user who had published the articles. Furthermore, Facebook argued that it was not in a position to evaluate the truth or falsity of the posts and would not remove the content without a valid court order “identifying the specific content deemed to be defamatory”. [para. 5]
Upon the Facebook’s refusal to remove the content, Mr. Muwema brought proceedings against Facebook in the High Court of Ireland. At pre-trial stage, he sought the following interlocutory orders:
- A permanent order, prohibiting the publication or the further publication of TVO’s Facebook page and the impugned content;
- In the alternative, an order prohibiting the publication or further publication of a number of specified posts appearing on TVO’s Facebook page;
- An order that the defendant or any person having notice of the order cease and desist in the further publication of the impugned articles; and
- An order directing the defendant to provide the plaintiff with any details which it holds relating to the identities and location of the person or persons who operate the TVO Facebook page or the individual posters to that page. [para. 1]
Decision Overview
Justice Binchy rendered the judgment of the High Court of Ireland (the Court). He first addressed the question of whether the impugned articles were defamatory, and in doing so had little difficulty in finding that they were “manifestly defamatory of [Mr. Muwema’s] character, unless [they were] proven to be true.” [Para. 50] The Court went on to observe that the normal remedy for defamation was damages, but on this occasion the plaintiff was seeking interlocutory relief pursuant to section 33 of the Irish Defamation Act of 2009 (the 2009 Act), and section 18 of the European Communities Regulations of 2003 (the 2003 Regulations).
The Court first considered section 33 of the 2009 Act, which states that an order prohibiting publication or further publication of content may be granted where the court is of the opinion that (a) the statement is defamatory, and (b) the defendant has no defense to the action that is reasonably likely to succeed. The Court noted that the circumstances of the present case fell within section 27 of the 2009 Act, which provided for the defense of “innocent publication”. Under section 27(2) of the 2009 Act, a person is not considered an “author, editor or publisher” of a statement if, “in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.” [para. 52] Where someone is not an “editor, author or publisher” under the provision, and where they took “reasonable care” in relation to the publication and did not have reason to believe that what they did caused or contributed to the publication, they will have a defense to a cause of action in defamation in relation to that publication. The Court reasoned that the issue of whether the defendant was made aware by the plaintiff of the defamatory material, and declined to take it down, did not affect the eligibility of this defense. Accordingly, the Court found that as the defendant was likely to avail of the defense of “innocent publication”, this precluded the plaintiff from obtaining an order under section 33 of the 2009 Act.
The Court then went on to consider section 18 of the 2003 Regulations, which exempted Internet service providers (ISPs) hosting the impugned content from liability in defamation. However, this exemption only applied where the ISP either “[did] not have actual knowledge of the unlawful activity concerned and, as regards claims for damages, [was] not aware of facts or circumstances from which that unlawful activity [was] apparent, or [the ISP], upon obtaining such knowledge or awareness, [acted] expeditiously to remove or to disable access to the information.” The Court noted that, in Mulvaney v. The Sporting Exchange Ltd t/a Betfair, a betting site was able to rely on this defense for posts published on one of its chatrooms, provided it met the conditions concerning knowledge and expeditious action. Accordingly, the Court reasoned that the defendant in this case had a “reasonable likelihood” of success in defending on these grounds also, and this was a further reason why the plaintiff could not rely on section 33 of the 2009 Act.
The Court noted that section 18(3) of the 2003 Regulations provided that section 18 “shall not affect the power of any court to make an order against an ISP requiring the provider not to infringe, or to cease to infringe, any legal rights.” The Court observed that although this provision envisaged that the Court may make an order where an ISP enjoys immunity under section 18 of the 2003 Regulations, the Regulations themselves did not confer a power on the Court to make such an order. In other words, the power to make the order must come from somewhere else. The Court concluded that it was strongly arguable that the Court only had jurisdiction to grant “takedown” or prior restraint orders against an ISP pursuant to the 2009 Act. In this context, the Court highlighted that the criteria set out under section 33 of the 2009 Act applied equally to “takedown” orders as it did to prior restraint orders. As noted already, the plaintiff was not entitled to an order under section 33 of the 2009 Act.
Finally, Justice Binchy believed that the discretionary nature of the remedies under section 33 of the 2009 Act represented another hurdle for the plaintiff. In such circumstances, the courts could take into account the equitable principle that courts “should not grant the orders sought if they are unlikely to serve any practical purpose.” [para. 62] In this case, the Court noted several other articles published by third parties on other websites that contained interviews with Mr. Muwema in which he denied the very allegations made in the impugned Facebook posts. According to Justice Binchy, while the lawyer “was perfectly entitled to give such interviews to defend his reputation, […] having chosen to do so he himself [became] a participant in the publication of the allegations.” [para. 63] Therefore, as these articles repeat the impugned allegations and the articles could be accessed through a simple Google search, injunctive relief would serve no useful purpose.
The Court reached its conclusion that no interlocutory relief could be granted against the defendant in this case with “some unease.” According to the Court, the 2009 Act and the 2003 Regulations seemed to result in a situation where persons defamed by an internet posting are left without a remedy unless the author is identifiable and amenable to the jurisdiction of the Court. The Court recognized that even though the reluctance of courts to grant prior restraint orders reflected “the importance attached by the courts and society at large to freedom of expression”, it was doubtful that the legislators had intended to pass laws that allowed ISPs to rely on a defense founded on the right to freedom of expression of a person who has chosen to remain anonymous and who is beyond the jurisdiction of the courts. The Court granted an order that the defendant disclose the identity of TVO to the plaintiff on terms that had been agreed between the parties.
