The High Court refused an application by Ugandan lawyer Fred Muwema for interim orders requiring Facebook Ireland Limited to remove or restrain posts about him, but made an agreed Norwich Pharmacal order concerning information identifying the pseudonymous poster.
In a judgment delivered on 23 August 2016, Mr Justice Binchy said allegations that a practising lawyer had taken a substantial bribe or staged a break-in at his own premises for political purposes were defamatory unless proven true. The allegations appeared in posts on a Facebook page operated under the pseudonym Tom Voltaire Okwalinga, or “TVO”, between 17 and 24 March 2016.
Muwema said the posts alleged he had accepted US$260,000 in bribes, staged a break-in at his law firm and was guarded by armed forces. He described the claims as false and defamatory and said they had harmed his reputation and caused distress. Facebook disputed that it was the publisher and argued it could rely on statutory protections for intermediary services and innocent publication. Those were submissions in the interlocutory application, not findings that the allegations were true.
The court held that the posts were defamatory in character, but said the Defamation Act 2009 allowed an order prohibiting publication only where the defendant had no defence reasonably likely to succeed. On the evidence then before it, Facebook appeared likely to rely successfully on the innocent-publication defence in section 27(2)(c), which covers responsibility limited to operating a service through which electronic material can be made available. The court also considered Facebook reasonably likely to succeed under the European Communities (Directive 2000/31/EC) Regulations 2003.
The judge said the statutory test applied to both takedown and prior-restraint orders. He also found that removal would serve no useful purpose because similar allegations were available elsewhere online, including in reports of interviews Muwema had given to deny them. He stressed that the Ugandan Supreme Court material raised by Facebook was of a different character from the allegations in the case.
The court therefore refused the requested takedown and restraint orders. It did not decide the underlying defamation claim or determine the truth of the posts. It made a Norwich Pharmacal order in terms the judge understood the parties had agreed; the judgment does not set out those terms.
The judge expressed concern that the statutory protections might leave people harmed by anonymous online defamation without a remedy against a hosting service, while noting that the wider jurisdictional question had not been argued in the application.