The High Court in Muwema v Facebook Ireland Ltd [2016] IEHC 519 held that Facebook had no duty to remove defamatory content posted by an anonymous third party. Justice Binchy did, however, make a Norwich Pharmacal order requiring Facebook to disclose the identity and location of the person operating the page involved.

Background

Mr Muwema is a Ugandan lawyer and a partner in the Ugandan firm of Muwema & Co. Advocates and Solicitors. In his affidavit, he asserted that his firm is a high profile and prestigious law firm specialising in the areas of Intellectual Property and Anti-Counterfeit Law. Mr Muwema took issue with what he described as three “highly offensive and defamatory publications” posted on Facebook about him, by a person identified only by the pseudonym TVO. Mr Muwema issued proceedings against Facebook, but rather than seeking damages, he sought a number of interlocutory orders.

Decision

The High Court refused to grant the orders sought by the applicant requiring Facebook to remove the defamatory content. Justice Binchy stated there could hardly be any doubt that the words complained of were defamatory, but that the Facebook is an ISP, under the E-Commerce Regulations 2003 (S.I. 63/2003), and Regulations 15-18 thereunder provide it with a line of defence in regard to defamatory content created by users, subject to meeting the conditions therein. In addition, Facebook could avail of the statutory defence of innocent publication, under s.27(2)(c) of the Defamation Act 2009.

Judge Binchy rejected the plaintiff's argument that pursuant to Regulation 18(3) of the E-Commerce Regulations (which states: "This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights") the court had the power to make an order requiring Facebook to cease infringing his legal rights. He held that although this Regulation envisages that a court may make an order for injunctive relief against an ISP, even in circumstances where the ISP otherwise enjoys an exemption from liability, the Regulations themselves do not confer a power upon the court to make such an order, the power to do so must be derived from elsewhere. He stated that the power to make such orders in defamation actions is set out in s.33 of the 2009 Act but that the plaintiff could not avail of an order under s.33, as that section only permits injunctive relief against an ISP where the defendant has no defence that is reasonably likely to succeed. In this case, however, Facebook was reasonably likely to succeed via the innocent publication defence under s.27(2)(c).

Judge Binchy also rejected the plaintiff's argument that Regulation 18(3) is analogous to Article 8(3) of the Copyright Directive and that the decision of Judge Cregan, in Sony Music Entertainment (Ireland) Ltd v UPC Communications Ltd (no.1) [2015] IEHC 317, makes it clear that the court has the power to grant injunctions against intermediaries whose services are being used by a third party to infringe a legal right. Judge Binchy held that this was clearly not the case, as article 8(3) of the Copyright Directive mandates Member States to ensure injunctive relief is available in cases of copyright, whilst Regulation 18(3) (and the corresponding article in the E-Commerce Directive, Article 14(3)) merely confirms the continuation of powers otherwise vested in the court.

In addition to the above difficulties, Judge Binchy held that the plaintiff faced the problem of the futility of the court making the takedown and prior restraint orders sought, as the content concerning the plaintiff's reputation was not limited to Facebook's website, but is freely available elsewhere on the internet.

Judge Binchy noted that he had come to his decision with "some unease", as it appears that a person who has been defamed by an internet posting may be left without any remedy at all, unless the author is identified and amenable to the jurisdiction of the court. He stated that the 2009 Act "now provides a shield against damages (as indeed do the [E-Commerce] Regulations) to defendants meeting its requirements, and the same shield also prevents the court from granting injunctive relief to persons claiming to be defamed".