The Court of Appeal has dismissed a Ugandan lawyer’s appeal seeking the identity and location of the operator of a Facebook page, upholding a decision that disclosure could expose the anonymous user to a real risk of serious harm in Uganda.
The appeal concerned a Norwich Pharmacal order, which can require a party such as Facebook Ireland to disclose information about an alleged wrongdoer. The court said the remedy is discretionary and requires a balance between the applicant’s access to justice and countervailing rights or interests.
The lawyer, Fred Muwema, said three posts published in March 2016 on the “Tom Voltaire Okwalinga” Facebook page defamed him. He sought the user’s basic subscriber information so he could pursue a damages claim against the author. The judgment records that the identity and location of the page’s operator or operators were not known to him. Facebook Ireland said the URLs supplied also related to a separate page using the same name, complicating identification of the relevant account.
At first, the High Court indicated it would make the disclosure order. Before that order was perfected, Facebook Ireland submitted new affidavit evidence about the risk to the user if identified. The High Court then refused disclosure. It concluded that disclosure would probably expose the real or purported page operator to human rights abuses by Ugandan authorities, potentially including unlawful detention, mistreatment in custody or torture. It allowed Muwema to renew his application if the complained-of posts were not removed within 14 days.
On appeal, Muwema argued that the trial judge had given too much weight to evidence from Facebook Ireland’s litigation counsel and Ugandan lawyer Nicholas Opiyo, and too little weight to Muwema’s own evidence. He also argued that the evidence did not establish the required level of risk.
The Court of Appeal held that the trial judge applied the correct test and was entitled to prefer Opiyo’s evidence, which included his account of representing Robert Shaka in a case involving an alleged suspicion that Shaka was TVO. The appeal court found no error of law in the conclusion that the evidence established, on the balance of probabilities, a real risk to the user’s life or bodily integrity if identified.
The court therefore upheld the refusal of the Norwich Pharmacal order and dismissed the appeal. Its decision concerned disclosure of the user’s identity; the judgment noted that Muwema had already brought a damages claim against Facebook Ireland, which was defending it, including on the basis that it was not a publisher of the material.