Fred Muwema -v- Facebook Ireland Limited (2016) IEHC 519 Binchy J.
Mr Muwema, a lawyer from Uganda, was the subject of a Facebook page which levelled various allegations against him. Facebook refused to remove the page. Mr Muwema issued proceedings against Facebook on the basis that the material was defamatory and invited the Court to grant relief against Facebook to:
- take down the material posted on the website;
- prevent the anonymous poster, or others from re-posting the same material; and
- provide the identity of the anonymous poster (Norwich Pharmacal relief).
In addition to citing practical difficulties in proactively monitoring material published by in excess of 1.09bn daily active users of the Facebook service, Facebook submitted that as an Information Society Service Provider1 it could not be held liable for any alleged defamatory content created by its users. It also cited the defence of innocent publication2. Further, as the content concerning Mr Muwema’s reputation was not limited to the Facebook site and the content had been in circulation on the internet for a period of two years, Facebook challenged whether any reputational damage was caused. It invited the Court to find that that Mr Muwema’s complaint was, in reality, against the person who created the content. Facebook agreed to provide the identity of the anonymous poster.
Conversely, Mr Muwema submitted that Facebook has its own statement of rights and responsibilities with which it should comply and that once notified of the unlawful content, there was an obligation to remove it. He suggested that Facebook could not place reliance on the defence of innocent publication in circumstances where it had failed to take any reasonable care in respect of the publication. He acknowledged that the Directive cited by Facebook afforded Internet Service Providers (ISP’s) a degree of protection. However, they also, he submitted, entitled a Court to make an order against an ISP requiring it not to infringe or to cease infringing any legal rights. He added that as he had put Facebook on notice of the publication it was now involved in publishing defamatory comments.
The Court noted that Section 33 of the Defamation Act, 2009 provides that the Court may make an order prohibiting the publication if the Court is of the opinion that:
- The statement is defamatory; and
- The defendant has no defence to the action which is reasonably likely to succeed.
The Court had no issue in deciding that the statements were indeed defamatory, the normal remedy for which is damages. However, Mr Muwema was seeking interlocutory reliefs, necessitating a different analysis.
In relation to the second requirement, the Court reiterated that the defence of innocent publication means that the person shall not be deemed to be the author, editor or publisher of a statement if they were responsible for the operation or provision of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available. The Court was of the opinion that this was directly relevant in relation to the Facebook website. The fact Facebook was made aware of the content complained of was an irrelevant consideration.
The Court also addressed Regulation 18 of the E-Commerce Regulations. These provide that an ISP shall not be liable for damages for the information stored if it does not have actual knowledge of the unlawful activity concerned. The Court noted that under the E-Commerce Regulations3 a court may make an order against the ISP requiring it not to infringe, or cease to infringe any legal right. The Court, however, must have the power to make such an order. The E-Commerce Regulations do not grant such a power. Therefore the power must be derived elsewhere. In relation to defamation actions, the power of the court to make such orders is set out in Section 33 of the Defamation Act, 2009. However, in relation to the ISP in this case such an order cannot be made because of the available defence of innocent publication.
The Court in referring to the E-Commerce Regulations’ protection of ISPs from actions for damages in certain circumstances also noted that they envisage the granting of appropriate injunctive relief to safeguard the legal rights of those whose rights might otherwise be infringed by the activities of the customers of ISPs. However, the wide nature of the innocent publication defence grants ISPs a defence from an award of damages against it or the granting of an injunction to remove any such defamatory material. It leaves a person defamed by an internet posting without any remedy at all unless the author is identified and falls under the jurisdiction of the Court.
Arguably it has now become even more difficult to protect your reputation when you have been defamed online. The Courts appear to be unexpectedly constrained by the existing legislation that arguably affords ISP’s a greater degree of protection over and above what was originally intended by the Oireachtas. What has become clear is that there are certain steps that can be taken by a defamed party to maximise the possibility of successfully compelling an ISP to remove the material. These include exhausting the internal complaint procedures of the ISP and using all possible means to try to identify the person responsible for the post before issuing proceedings for defamation.