Eoin Mckeogh v John Doe 1 (user name Daithii4U) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 16 July 2014
• Neutral Citation: [2014] IEHC 454
• Court: High Court
• Date: 16 July 2014

[2014] IEHC 454

THE HIGH COURT

[No. 254 P/2012]

McKeogh v Doe 1 & Ors

BETWEEN

EOIN MCKEOGH

PLAINTIFF

AND

JOHN DOE 1 (USER NAME DAITHII4U)

AND

JOHN DOE 2

AND

JOHN DOE 3 (TAXI EIRE.LEFORA.COM)

AND

FACEBOOK IRELAND LIMITED

AND

GOOGLE IRELAND LIMITED

AND

GOOGLE INC (AS SUBSTITUTED BY ORDER OF THE COURT DATED 27 JANUARY 2012)

AND

YOUTUBE

AND

YOUTUBE LLC

AND

YAHOO! (UK) LIMITED

AND

CROWDGATHER INC

DEFENDANTS

RSC O.42 r7

RSC O.44

RSC O.19 r27

RSC O.42 r32

RIORDAN v HAMILTON & ORS UNREP SMYTH 26.6.2000 2000/16/6098 (EX TEMPORE)

RSC O.19 r28

RYANAIR LTD v BRAVOFLY & TRAVELFUSION LTD UNREP CLARKE 29.1.2009 2009/50/12462 2009 IEHC 41

CIVIL LIABILITY ACT 1961 S35

MORONY v GUEST 1878 1 LRI 564

CIVIL LIABILITY ACT 1961 35(1)(H)

Defamation – Civil Procedure – Striking Out Application - Abuse of Process – Evidence – Fair Trial – Defence – Jury Determination – Injunctive Relief

The facts of this case involved a number of defamatory statements that were published alleging, that the plaintiff was involved in criminal activity, namely evading a taxi fare. After being granted mandatory injunctive relief in regards to preventing and restraining the publication of defamatory material and other orders the plaintiff in these proceedings sought for contempt in the face of the order of this Court (Peart J.) granted on 16th May, 2013, and perfected on 22nd May, 2013 for failing to provide an electronic copy of a fake Facebook profile or swear an affidavit as directed by the court. It was decided by Gilligan J. in the high court that these first reliefs would fail on their face, however the plaintiff”s other submission that the defence of the Fourth named defendant, Facebook, contained material which was scandalous, vexatious, malicious or an abuse of process, and should therefore be properly struck out would be adjudicated on more thoroughly.

Gilligan J. considered the submissions of the parties in regards to the striking out of Facebook”s defence. Counsel on behalf of the plaintiff submitted that the order to be struck out or amended any matter in any endorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action. The plaintiff contended that the defence contained matters of evidence rather than matters of fact and that since the main proceedings relate to a cause of action in defamation they would be heard before a jury and that such material would be inappropriate since the jury is charged with determining issues of fact alone. Counsel for the plaintiff additionally contended that the language used in the defence is abusive and aggressive and should therefore be struck out. Counsel for the plaintiff relied on the case of Riordan v Hamilton & Ors and Ryanair v. Bravofly and Anor [2009] IEHC 4 to strengthen their claim for striking out. Counsel for the defendant submitted that the adverse publicity allegedly garnered by the plaintiff as a result of the intervention of the fourth named defendant in the interlocutory motion hearing, is a pleading of fact. Any doubt, and it is submitted that there is not, that the pleadings refer to evidence, then the benefit of the doubt should fall in favor of the Fourth named defendant, as stipulated in Bravofly. In concluding, Gilligan J. did not consider that any of the paragraphs that were sought to be struck out related to actual evidence that may be offered on the fourth named defendants behalf. Applying the test established in Bravofly Gilligan J decided that the defence does no more than meet the specific claim as made by the plaintiff and did not consider the defendant pleadings can be said to be prejudicial of the plaintiff”s interest or of the plaintiff”s right to a fair trial of his action since they are relatively precise and are not vague in any way. The defence in question was very directly made against the plaintiff”s legal advisers and not the defendants themselves. Gilligan J concluded that the various reliefs sought by the plaintiff should refuse to stand.

1 1. The plaintiff in these proceedings is a student. In the latter part of December, 2011 a video of people allegedly evading a taxi fare on the night of 13 ^th November, 2011, was posted online on Youtube and Facebook and a number of other websites. The plaintiff was identified by the video as the person evading the taxi fare. Through the creation of a fake Facebook profile on the 28 ^th December, 2011, by a third party, purportedly in the name of the plaintiff himself, a number of defamatory statements were published alleging, inter alia, that the plaintiff was involved in criminal activity. This video was viewed by a large number of people over various social media networks and other websites.

2 2. On 11 ^th January, 2012, the plaintiff sought interlocutory injunctive relief restraining the publication of this defamatory material and directing that the identity of the sources of this material be disclosed to the plaintiff. An interim injunction was granted by this Court (Peart J.) on 11 ^th January, 2012, restraining the defendants and other third parties on notice from further defaming the plaintiff or republishing the videos in question. Yahoo! UK Limited and Cowgather Inc dealt with the matter by agreement with the plaintiff. The first, second and third named defendants also apologised and removed the offending material from their sites and were excused from further appearance. However, the remaining defendants, Google, Youtube and Facebook Ireland Limited resisted the application for injunction. The relevant part of the relief sought is an order directing the fourth to the tenth named defendants, and any other party nominated by the court, to "disclose the identity of the web users who have defamed the plaintiff via their websites to enable the plaintiff to protect his good name."

3 3. On 16 ^th May, 2013, Peart J. delivered judgment in this matter, granting mandatory injunctive relief to the plaintiff preventing and restraining the publication of defamatory material and other orders including an order that "Facebook provide an electronic copy of the fake Facebook Profile" as the plaintiff had sought. The fourth named defendant has, as yet, not provided the plaintiff with this information and has indicated that it is not in a position to do so. The terms of the order of Peart J. made on 16 ^th May, 2013, which is under appeal to the Supreme Court, are as follows:

"The Court doth direct that"

1 Facebook Ireland Limited the fourth named defendant do provide to the Solicitor acting on behalf of the plaintiff by email…as soon as is reasonably practicable an electronic copy of the fake Facebook profile as sought by the plaintiff…"

4 4. During the hearing of a motion in separate proceedings before this Court (Peart J.) which were brought by the plaintiff against a number of national newspapers to restrain publication of details of the plaintiff's case, legal representatives for Facebook, though the latter was not a party to the proceedings, were permitted by Peart J. to address the court de bene esse. The plaintiff makes a number of claims in his statement of claim to the effect that the negative publicity arising from the comments made by counsel for the fourth named defendant at this time, including the suggestion that the plaintiff was, in fact, seeking relief similar in nature to a "super injunction," caused him reputational damage. The paragraphs of the defence issued by the fourth named defendant which are the subject of the within proceedings are in response to those claims.

5 5. The plaintiff to these proceedings in this application seeks an order by way of notice of motion pursuant to Order 42, rule 7 or Order 44 of the Rules of the Superior Courts, or both, directing the attachment and committal of Ms. Sonia Flynn, Managing Director of Facebook Ireland Limited, for contempt in the face of the order of this Court (Peart J.) granted on 16 ^th May, 2013, and perfected on 22 ^nd May, 2013 for failing to provide an electronic copy of a fake Facebook profile or swear an affidavit as directed by the court, other than a hearsay affidavit by lawyers for the fourth named defendant, setting out the manner in which the fake profile came to be deleted or permanently destroyed and the date on which such took place. The plaintiff also seeks an order directing the attachment and committal of Ms. Flynn for contempt of the order of the court for failing to provide a full explanation in relation to the manner in which the profile in question was deleted or the date on which the deletion took place. The plaintiff further seeks directions in relation to these reliefs. An order is also sought under Order 19, rule 27 of the Rules of the Superior Courts 1986 as amended striking out paragraphs 54, 55 and 56 of the Defence of the fourth Named defendant on the grounds that it contains material which is scandalous, vexatious, malicious and/or an abuse of process.

6 6. During the hearing of this motion it was accepted by counsel for the plaintiff that it was not possible to proceed with the first two reliefs sought, namely the orders for attachment and committal of Ms. Flynn for breach of a court order, there being no order made against her and she not having been served with the proceedings or any relevant orders of this Court. The orders made in these proceedings are addressed to Facebook and Facebook Ireland Limited, the latter being a limited liability company and the employer of Ms. Flynn. An order for substituted service or an order for sequestration of the corporate property of the company could have been sought under Order 42, rule 32 of the Rules of the Superior Courts rather than an order for attachment and committal of an individual under Order 42, rule 7.

7 7. The third relief as sought is no...