Dear all,

A recent decision of the Irish High Court may be of some interest,
though it is only a first instance decision.

In Muwema v Facebook Ireland Ltd [2016] IEHC 519, the Irish High Court
considered an application by the Plaintiff, a Ugandan lawyer, for
interlocutory orders in his defamation claim against Facebook.

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/4dfdcbb6d27a62778025803400536867?OpenDocument

The claim concerns posts on Facebook by a third party and on a page
created by that individual (apparently including posts by others),
which accuse the Plaintiff of serious wrongdoing, which the Plaintiff
denies. Details of those allegations are set out in the judgment, for
present purposes suffice it to say that the allegations include the
claim that the Plaintiff took a substantial bribe to undermine a
presidential election petition in Uganda, that he staged a break in
at his own offices to undermine that petition in Uganda and that he
was now guarded by Ugandan armed forces. (As noted all the allegations
are just that and are denied.)

The Court held that:

1. To secure an order that the material complained of must be taken
down before trial, the Plaintiff needed to show that there was no
doubt that he would succeed at trial and that the Defendant had no
defence. The Plaintiff had failed to meet this very high Threshold.
(Section 33 of the Defamation Act 2009 considered.) As similar
material could easily be found elsewhere on the internet, the Court
also refused an order pursuant to Section 33 on the basis that such an
order would be futile, by analogy with the maxim that equity does
nothing in vain.

2. Facebook is likely to have a defence of innocent publication
pursuant to Section 27 of the Defamation Act 2009 and there was also a
reasonable likelihood that Facebook had a defence pursuant to
regulations 15-18 of the European Communities (Directive 2000/31/EC)
Regulations 2003 (S.I. 68 of 2003). The Court expressed some concern
(at 65) that, while the rule against interlocutory relief in
defamation proceedings was based at least in part on the principle
that damages were the normal remedy for defamation, the statutory
defences noted above might mean that a Plaintiff could be denied both
interlocutory relief and damages against a service provider such as
facebook. (With respect, that concern seems misplaced, since damages
may still be awarded against the actual author of the defamatory posts
and a perpetual injunction granted against Facebook, following trial,
if appropriate.)

3. Most significantly for present purposes, the Court made a limited
Norwich Pharmacal order against the creater of the page complained of,
in terms apparently agreed between the parties (see at 17 and 64).

It is this last point which I think worthy of comment. I must say I
find it surprising and even concerning that an Irish Court, very far
removed from Uganda and what may happen there and with no connection
to the matter at all apart from the fact that Facebook chooses to
operate a large part of its business out of (or at least through) this
country should make such an order. It is of particular concern to my
mind, given the nature of the allegations made (all of which are
denied by the Plaintiff). If those allegations were true (and I have
no reason whatever to suppose that they are) there must be a real
concern for the personal safety of anyone identified to the Plaintiff
by Facebook. I think it is disappointing that Facebook adopted the
position that it appears to have regarding Norwich Pharmacal relief
and surprising that the Court did not take into account the facts that
(i) there was no legitimus contradictor to the making of the order;
(ii) the comments concerned matters which if true would be of
legitimate political concern; and (iii) the Irish Court will have no
ability to regulate what may happen outside the jurisdiction, in
Uganda or elsewhere.

Kind regards

Ger