Muwema v Facebook Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 08 February 2017
• Neutral Citation: [2017] IEHC 69
• Docket Number: [2016 No. 4637 P.]
• Court: High Court
• Date: 08 February 2017

[2017] IEHC 69

THE HIGH COURT

Binchy J.

[2016 No. 4637 P.]

BETWEEN

FRED MUWEMA

PLAINTIFF

AND

FACEBOOK IRELAND LIMITED

DEFENDANT

(No. 2)

Defamation – The Defamation Act, 2009 – Publication of defamatory postings – Norwich Pharmacal order – Right of freedom of expression versus right of bodily integrity – Identification of uniform resource locator – Violation of human rights.

Facts: In the substantive proceedings, the plaintiff was denied any relief by the High Court for the removal of certain postings from the defendant's Internet service. However, the Court indicated its intent to grant the plaintiff's application for the Norwich Pharmacal order as the defendant did not oppose it. The defendant now sought leave of the Court to introduce "new evidence" with a view to oppose the making of a "Norwich Pharmacal Order." The defendant contended that it had been found that the person who was responsible for making the alleged defamatory postings on Facebook was a famous political activist who was wanted for arrest in Uganda. The defendant contended that if the identity of that person was revealed as per the plaintiff's request, the life of that person would be in danger and he would be subjected to grave human rights violation and torture in Uganda, if arrested. The plaintiff objected to the defendant's assertion on the basis of hearsay evidence. The plaintiff claimed that he would be left without any right of an effective remedy in those circumstances.

Mr. Justice Binchy allowed the defendant's application for the admission of new evidence. The Court refused the plaintiff's application for the Norwich Pharmacal order subject to the condition that the defendant would notify that named political activist that he should remove the offending postings from Facebook within 14 days of the date of delivery of the present judgment, and in the event he failed to do so, the Court would give liberty to the plaintiff to renew his application for the Norwich Pharmacal order, which would be duly granted by the Court. The Court found that the defendant did not meet the criteria for the admissibility of new evidence as that evidence was always available to the defendant. The Court, however, held that since the life and limb of a person was in danger, it would be prudent to admit that evidence. The Court held that though the plaintiff was entitled to the constitutional right to good name, the said right needed to be balanced against the right to life of another person.

JUDGMENT of Mr. Justice Binchy delivered on the 8th day of February, 2017.

1 This decision is supplementary to a decision previously delivered by me in these proceedings on 29th July 2016, the subject of a written judgment dated 23rd August 2016, in which I refused the plaintiff certain orders which would have had the effect of requiring the defendant to take down certain postings concerning the plaintiff, posted by an anonymous source on the defendant's internet service. One of the reliefs sought by the plaintiff included an order directing the defendant to provide the plaintiff with any details which it holds relating to the identities and location of the person or persons operating a Facebook page under the name 'Tom Voltaire Okwalinga ('TVO')', on whose Facebook page the postings were made. In other words the plaintiff applied for a 'Norwich Pharmacal' order with the intent of identifying the name of the person responsible for the postings concerning the plaintiff.

2 The defendant choose not to oppose the making of a 'Norwich Pharmacal Order' for reasons that I refer to below. For this reason therefore, although refusing the other reliefs applied for by the plaintiff, I indicated in my judgment of 29th July that I would make such an order, and reflected that in my written decision of 23rd August, 2016 However, before that order could be perfected the defendant sought the leave of the Court to introduce new evidence with a view to opposing the making of a 'Norwich Pharmacal Order', notwithstanding that the interlocutory hearing had concluded. That application came before the court on 21st December 2016. It was opposed by the plaintiff.

The New Evidence

3 The new evidence sought to be admitted is set out in an affidavit of Mr. Jack Gilbert, Lead Litigation Counsel of the defendant dated 19th August 2016. In this affidavit, Mr. Gilbert avers that:-

'in my role as lead litigation counsel for Facebook ... I receive and review hundreds of legal claims each year, which comprise dozens of requests for Norwich Pharmacal relief or basic subscriber information ('BSI'). Because Facebook is not a publisher of content, its general position is that any complaints regarding content should be directed at the relevant user that posted the content. To that end Facebook generally does not take any position with respect to requests for limited Norwich Pharmacal Order relief. In remaining neutral, Facebook assumes that (1) the content for which BSI is requested is to identify by specific uniform resource locator ('URL') which is the 'address' a person enters into a web browser to locate content on the internet; (2) the requester has made out a prima facie case against the user, evidencing his right to Norwich Pharmacal relief; and (3) the requester follows generally applicable principles of non-party discovery; and (4) that the court is the appropriate arbiter as to whether or not the application is meritorious; a role Facebook is not in a position to fulfil'

4 Mr. Gilbert goes on to explain that when he received the plaintiff's proceedings herein, he treated with them in the usual way and assumed that Facebook would not have any difficulty in providing such information as is had, relating to the identity and location of the person operating the TVO Facebook page, or the individual hosters thereon. However, after I indicated in 29th July that I was disposed to grant the plaintiff Norwich Pharmacal relief, Mr. Gilbert avers that he informed his colleagues as to the impending requirement to disclose the BSI of the posts referred to in the notice of motion. He was then informed by his colleagues that TVO is a political activist who has been 'marked for arrest' by the Ugandan Government. He states that TVO's Facebook profile appears to have as many as 80,051 followers as of 17th August 2016.

5 He goes on to state that TVO is the author of the posts referred to in the body of the notice of motion herein, but the position is complicated by the fact that the URLs provided by the plaintiff in the schedule to the notice of motion, together with other posts exhibited at exhibit 'FM2' to the plaintiff's affidavit, related to an entirely different Facebook page which also goes by the name of 'Tom Voltaire Okwalinga'. On 17th August 2016, that Facebook page had 14,403 followers. He describes this page as the 'fake TVO page' as he thinks it likely (although he is not certain) that it is a fake or copycat of the more established TVO profile. Some commentators on the fake TVO page made comments suggesting that this is so. Accordingly, he says, the plaintiff has intermingled the more established TVO profile with the fake TVO page.

6 He goes on to say that he has been informed by Facebook's head of public policy for Africa, Ms. Okobi that Facebook has in the past 'received multiple requests' from Ugandan Government actors and others affiliated with Uganda's President Museveni to take down contents from TVO's page, to shut down the page and/or to reveal TVO's personally identifiable information. He says he is also informed by Ms. Okobi that TVO had been the subject of a number of previous attempts by the Ugandan Government both to censor TVO and to obtain information that would lead to his identification and that attempts have been made to call Facebook before Uganda's Parliament to compel Facebook to produce the information that would facilitate the arrest of the person or persons behind the account. During the course of a phone conversation between Ms. Okobi and a Mr. Godfrey Mutabazi, the Executive Director of Uganda's Communications Commission, it is alleged that Mr. Mutabazi stated that ' TVO was a threat to the Ugandan State and must be turned over and stopped' and Facebook was made aware of the Government's interest in arresting TVO.

7 Mr. Gilbert further avers that the Ugandan Government has previously arrested and detained at least one person, an information security expert by the name of Mr. Robert Shaka, who was incorrectly presumed to be TVO. He says that the defendant is unaware whether or not there is any immediate threat to the life or liberty of the author of the fake TVO page, but he notes that the content published on that page is also critical of the Ugandan Government and is similar in substance to that of the genuine TVO profile. He surmises therefore, that aside from any indirect threat which may arise due to the apparent association with the genuine TVO profile, the content of the fake TVO page may also have attracted the interest of the Ugandan Government and the author of the fake TVO page may be at risk of arrest and subsequent persecution in his or her own right.

8 He also says that as of September 2015, there were 172 registered complaints of human rights violations by Police Officers with the Ugandan Police Force Professional Standards Unit. He says that Freedom House in its 2015 report ranked Uganda as 'not free' due to increased violations of human rights and infringements of the rights to freedom of expression, assembly and association. He exhibits a copy of the 2015 Freedom House report in this regard.

9 He also exhibits a copy of the 2015 US Department of State Human Rights Report on Uganda, in which it is reported that the three most serious human rights problems in Uganda include: lack of respect for the integrity of the person, as demonstrated by unlawful killings, torture,...