Facebook has no duty to remove defamatory content posted by a third party
The High Court refused to grant a Ugandan solicitor an order directing Facebook to remove defamatory posts about him, posted by an anonymous third party. Justice Binchy ordered Facebook to disclose the identity and location of the person operating the page involved, but could not grant the other orders sought under the Defamation Act 2009.
Fred Muwema claimed damages for defamation of character he claims he suffered by reason of articles posted on Facebook by a third party. Prior to issuing these proceedings, Mr Muwena requested Facebook Ireland Limited to take down the articles from its site, but it declined to do so.
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, and has been involved in a series of landmark cases in Uganda.
Mr Muwema took issue with what he described as three “highly offensive and defamatory publications” posted on Facebook, by a person identified only by the pseudonym TVO.
Mr Muwema argued that the articles were “false, scurrilous and defamatory of him” and submitted that the articles assert that he has accepted bribes in the amount of US$ 260,000; that he staged a break in into the premises of his own law firm in order to jeopardise a presidential election and petition; that he is now constantly guarded by armed forces.
Mr Muwema issued proceedings against Facebook, but rather than seeking damages (as per Reynolds v Malocco) Mr Muwema sought a number of interlocutory orders:
(i) A permanent order pursuant to section 33 of the Defamation Act 2009, prohibiting the publication or the further publication of the Facebook page of one Tom Voltaire Okwalinga (TVO), hosted by Facebook and a number of articles posted by TVO
(ii) In the alternative, an Order pursuant to section 33 of the Defamation Act 2009 prohibiting the publication or further publication of a number of posts appearing on the Facebook page of TVO.
(iii) An order that Facebook or any person having notice of the order cease and desist in the further publication of the impugned articles posted between 17th and 24th March 2016.
(iv) An order directing Facebook to provide Mr Muwema with any details relating to the identities and location of the person or persons who operate the Tom Voltaire Okwalinga Facebook page or the individual posters thereon i.e. “Norwich Pharmacal” order.
Justice Binchy stated that there could hardly be any doubt that the words complained of were defamatory, and that “to suggest that a practising lawyer has taken a substantial bribe is manifestly defamatory of his character, unless it is proven to be true”. Similarly, “a suggestion or allegation that a practising lawyer staged a break-in to his own premises for the purposes of orchestrating political subterfuge is also defamatory, unless proven to be true”. However, Facebook could avail of the statutory defence of innocent publication provided for in s.27(2)(c) of the Defamation Act 2009.
Counsel for Facebook also highlighted the fact that there were a number of articles about Mr Muwema concerning the very matters concerned in the High Court proceedings.
Justice Binchy accepted that the articles arose out of interviews that Mr Muwema himself gave in order to deny the allegations, which “he was perfectly entitled to give… to defend his reputation” – but having chosen to do so, he became a participant in the publication of the allegations, so that “anybody conducting the most rudimentary Google search… would be presented with articles which repeat the same allegations”
Justice Binchy stated that there was significant merit in the argument made by counsel for Facebook that “the genie was out of the bottle” and injunctive relief would be in vain.
Facebook did not oppose a limited “Norwich Pharmacal” order in respect of TVO, but was not willing to consent to a similar order in respect of the identity of the potentially thousands of individual posters on the TVO page – accordingly, and in the terms agreed by both parties, Justice Binchy made a “Norwich Pharmacal” order.
Save for the “Norwich Pharmacal” order, Mr Muwema’s application was subject to the limitations prescribed by the Oireachtas in s. 33 of the Defamation Act 2009.
Furthermore, Justice Binchy stated that the application should also be refused because it “would serve no useful purpose, having regard to the availability of publications containing the same and other damaging allegations about Mr Muwema elsewhere on the internet”.
Therefore, the application for takedown and prior restraint orders were refused with “some unease” – with Justice Binchy lamenting that “persons whose reputations are seriously damaged by anonymous and untrue internet postings may be left without any legal remedy against the site hosting the publication, even in the most flagrant of cases”
While recognising the importance attached to freedom of expression, Justice Binchy stated that there must be some doubt “about whether an ISP… is entitled to assert in defence of an application such as this, the right to freedom of expression of a party who has chosen to remain anonymous and remains at the time of the hearing of the application unidentified and beyond the jurisdiction of the Court, and who in any event does not have a right to publish defamatory statements” – casting doubt on whether this was a consequence intended by the Oireachtas when enacting s.27 of the Defamation Act 2009.