Eoin Mckeogh v John Doe 1 (User Name Daithii4U) and Others
Jurisdiction | Ireland |
Judge | Mr Justice Michael Peart |
Judgment Date | 22 January 2012 |
Neutral Citation | [2012] IEHC 95 |
Court | High Court |
Date | 22 January 2012 |
[2012] IEHC 95
THE HIGH COURT
BETWEEN:
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S (I) (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 21.1.2011 2011 IEHC 31
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13
ANSBACHER (CAYMAN) LTD, IN RE 2002 2 IR 517 2002 2 ILRM 491 2002/2/294
ROE v BLOOD TRANSFUSION SERVICE BOARD & ORS 1996 3 IR 67 1996 1 ILRM 555
CONSTITUTION
COURTS
Hearing in public
Court reports - Defamation - Anonymous internet users - Interim orders made against defendants - Plaintiff seeking to restrain third party newspapers from identifying him in court reports - Effective remedy - Administration of justice - Whether newspapers in breach of interim orders - Whether plaintiff entitled to restrain newspapers from identifying him - Whether plaintiff deprived of effective remedy - Re Ansbacher (Cayman) Ltd [2002] 2 IR 517; S (a minor) v Minister for Justice, Equality and Law Reform [2011] IEHC 31 (Unrep, Hogan J, 21/1/2011) considered - Reliefs refused (2012/254P - Peart J - 22/1/2012) [2012] IEHC 95
McKeogh v Doe 1
Judgment of Mr Justice Michael Peart delivered on the 22nd January 2012 :
Who would have thought when in the dark hours of the 13 th November 2011 a young man got out of a taxi in Monkstown without paying the fare, that this would result in another young man, the plaintiff, who was thousands of miles away in Japan on that date, would discover on the 29 th December 2011 after his return to this country, that not only had video footage of the first man exiting the taxi been posted on YouTube by the taxi driver in an effort to have his identity revealed, but also that thereafter another person, travelling the information superhighway that is the internet under the pseudonym 'Daithii4U', would see that footage and wrongly identify the plaintiff as being the person who had left the taxi without paying the fare, thereby defaming him, and that this zemblanity, the very opposite of serendipity, would see the appearance of a phalanx of at least a dozen lawyers before this Court for seven hours throughout yesterday for a debate of weighty issues, such as the right to privacy, the right to freedom of the press to fairly and accurately report court proceedings, and the right to an effective remedy, the combined costs of which might be sufficient to purchase a decent house in any part of the country? Yet that is what has happened.
By way of background to this unfortunate state of affairs which has undoubtedly led to great upset and distress to the plaintiff himself and his family, I should say that on the 11 th January 2012, I heard an ex parte application by the plaintiff for a number of interim orders aimed at achieving an immediate removal from YouTube of the video footage which has led to the plaintiff being defamed, as well as from any other sites on which it might be viewed, as well as restraining the named defendants and other parties with notice of the making of the orders from publishing material defamatory of the plaintiff on the internet or otherwise, including the video material in question. In addition, I granted what are known now as Norwich Pharmacal orders requiring certain of the named defendants to provide to the plaintiff the identity of the web users who had defamed the plaintiff via their websites so that the plaintiff would be able to take steps against them in order to protect his good name and prevent further publication of material defamatory of him.
I have been informed by Pauline Walley SC for the plaintiff that following the making of those orders on the 11 th January 2012, some success has been achieved as there has subsequently been a 95% take down of the material in question. There has apparently been some information provided also in relation to the identity of parties who have posted defamatory material, but I am unclear as to the extent of that information. But for the moment I am not concerned with the extent to which the parties to whom those orders are directed have complied with same. There is no application before this Court in relation to any alleged non-compliance, such as attachment and committal or sequestration of assets.
What is before the Court is an application directed against parties described in the title hereto as Third Parties, and who comprise a number of newspaper proprietors who have reported upon the court proceedings to date, but who were not named as defendants in the original proceedings. They were not served with the order made on the 11 th January 2012, and neither were they in court on that date. Being orders of an interim nature only, the Court directed that a Notice of Motion returnable for the 13 th January 2012 be served on the defendants, whereby the plaintiff could apply for interlocutory orders in the same terms pending the determination of the substantive proceedings.
In so far as the orders made on the 11 th January 2012 are binding on what are described therein as "any third party having notice of the making of the orders", the plaintiff is contending that the said newspaper proprietors who have reported on the said proceedings are within the meaning of 'third parties' for that purpose since they are aware of the making of the orders, and that by naming the plaintiff in their reportage of the court proceedings, and have reported upon the nature of the defamatory material, and in some cases have failed to report the denial by the plaintiff that the taxi fare evader is him and have failed to report this Court's conclusion that it was satisfied by the plaintiff's evidence that he was not even in this country on the 13 th November 2011 and was not and could not be the man shown exiting the taxi on that date, that they are in breach of the order made by this Court prohibiting the publication or republication, or any other dissemination on the Internet or in hard copy form, of material defamatory of the plaintiff. It has been submitted that the manner in which these parties have reported these proceedings to date has served only to perpetuate the defamation of the plaintiff, and constitutes a breach of the order in that regard.
I should say that the plaintiff at no time sought to institute these proceedings in a way that does not disclose his identity, and did not make any application on the 11 th January 2012 that his name should not be disclosed in any reporting of the application or the proceedings. That was not due to any oversight on his part or on the part of his legal team. Indeed, there is something counter-intuitive about the idea that a person who seeks reliefs from the Court aimed at vindicating his good name, by way of damages or otherwise, would seek to do so anonymously.
I should repeat also what I have said on several occasions, both on the 11 th January 2012, and on subsequent occasions, that I am completely satisfied from not only the clear evidence of the plaintiff himself, but also from a perusal of his passport, upon which there is stamped incontrovertable evidence of his presence in Japan on the 13 th November 2011, that he is not and could not have been the man seen exiting the taxi on that date. Indeed, the taxi driver himself appeared in Court on the 13 th January 2012 and confirmed to the Court that the plaintiff was not the man who have failed to pay the fare, and expressed his regret that the placing of the video footage in question had resulted in the plaintiff being wrongly identified as the culprit. I understand that he has also apologised to the plaintiff for what has occurred.
I should add also that the placing of the video on YouTube by the taxi driver did not of itself defame the plaintiff, though it certainly created a risk that a wrong identification might be made by somebody else. It was the wrong naming of the plaintiff by the person travelling under the pseudonym 'Daithii4U' which has done the damage to the plaintiff's reputation.
Nevertheless, this whole unfortunate saga has led to the most appalling stream of vile, nasty, cruel, foul, and vituperative internet chatter and comment on YouTube and on Facebook directed against this entirely innocent plaintiff, and the anonymous authors of which have chosen to believe and assume is the man who did not pay his taxi fare, and who feel free to say what they wish about him, and in language the vulgarity of which offends even the most liberal and broadminded, and which I will not repeat.
One can readily understand what motivates the plaintiff to try and put a stop to it. However, this court does not have a magic wand. The damage has already been done, and it is impossible to 'unring' the bell that has sounded so loudly. There is a lot of truth in the phrase already used in this case by Rossa Fanning BL for Facebook, and repeated by me a few days ago, namely that "the genie is out of the bottle". Certainly for my part, I would not wish that phrase to diminish or belittle in any way the gross injustice which has been perpetrated on this plaintiff whose life should not have become so blighted through no fault on his part.
On the present application against the newspapers in question, the plaintiff in his further effort to protect his good name has sought the...
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