Media law update - September 2016

FACEBOOK NOT REQUIRED TO REMOVE DEFAMATORY COMMENTS

A Plaintiff in a defamation action has been refused orders sought against Facebook to take down allegedly defamatory posts as well as orders preventing any similar posts from being reposted.

Factual Background
The Plaintiff in the High Court case of Nuwema v Facebook Ireland Limited was a Ugandan lawyer and a partner in the Ugandan firm of Nuwema & Co. Advocates and Solicitors. Mr. Nuwema had taken issue with three “highly offensive and defamatory publications” that had been posted on Facebook by a third party only identified by the pseudonym TVO. The three publications in question were published on the TVO Facebook page between 17 and 19 March 2016. Mr. Nuwema argued that the articles were false, scurrilous and defamatory and asserted that

(i) Mr. Nuwema accepted bribes in the amount of $260,000;
(ii) that Mr. Nuwema staged a break-in to the premises of his own law firm in order to jeopardise the Ugandan presidential election; and
(iii) the Plaintiff is now constantly guarded by armed forces.

Legislation
Mr. Nuwema sought reliefs pursuant to Section 33 of the Defamation Act 2009. Section 33 grants the Court power to make an order prohibiting the publication or further publication of a statement if, in its opinion

a) The Statement is defamatory and
b) The Defendant has no defence to the action that is reasonably likely to succeed.

Mr. Nuwema also relied on Regulation 18.3 of the E-Commerce Regulations which states

“this regulation shall not affect the power of any Court to make an Order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights”.

Facebook relied on the defence afforded to it under Section 27(2)(c) of the Defamation Act namely “innocent publication”. Facebook is an Internet Service Provider (ISP) within the meaning of the E-Commerce Directive and as such Facebook asserted that it was not liable for any allegedly defamatory content created by its users and thus could rely on the defence of innocent publication.

Decision of Mr. Justice Binchy
In relation to Regulation 18.3 of the E-Commerce Regulations Mr. Justice Binchy acknowledged that the Court may make an Order against an ISP requiring it not to infringe, or to cease to infringe, any legal rights and this Order may be made even in circumstances where an ISP otherwise enjoys an exemption from liability to a Plaintiff by reason of Regulation 18.1. However, Mr. Justice Binchy found that the regulations themselves do not confer a power upon the Court to make an Order against the ISP - that the power to do so must be derived from elsewhere.

In this regard, Mr. Justice Binchy had to consult Section 33 of the 2009 Act. Mr. Justice Binchy concluded that Mr. Nuwema is not entitled to an Order under this section, by reason of the defence of innocent publication. Mr. Justice Binchy acknowledged that there is no doubt that the statement is defamatory however Mr. Nuwema could not succeed on the second point under section 33 of the 2009 Act as it could not be said that Facebook had no defence to the action that was reasonably likely to succeed. Mr. Justice Binchy felt that Facebook would have a good chance of succeeding as it could be said that Facebook did not publish or cause to be published any of the reported content. Mr. Justice Binchy also took into account that by a simple Google search of Mr. Nuwema, there were a number of online articles concerning the allegations in question and Mr. Justice Binchy appeared to accept the argument made by Facebook that “the genie is out of the bottle” and that any injunctive relief would be in vain. Mr. Justice Binchy noted that some of these articles arose out of interviews that Mr. Nuwema himself gave in order to deny the allegations and even though Mr. Nuwema was perfectly entitled to give such interviews in order to defend his reputation, he also opened himself to further publication of the allegations.

Mr. Justice Binchy having refused to grant Orders prohibiting the publication or further publication against Facebook did grant a “Norwich Pharmacal” Order. This was on consent from both parties. Norwich Pharmacal Orders are now regularly being sought to unmask unanimous internet commentators such as the case at hand. The Norwich Pharmacal Order as granted by Mr. Justice Binchy directed Facebook to provide Mr. Nuwema with any details which it held relating to the identities and location of the person or persons who operated the Facebook page of TVO which is hosted by Facebook.

In Mr. Justice Binchy’s closing remarks, he stated that he came to this judgment with some “unease”. Mr Justice Binchy acknowledged that the 2009 Act protects ISPs from actions for defamation and does not allow the Court to grant injunctive relief against an ISP in circumstances where the ISP is likely to have a defence to the proceedings. Thus, Mr. Justice Binchy stated that his fear is that a person who is being defamed by an internet posting may be left without any remedy at all. Mr. Justice Binchy raised the question as to whether the Court has jurisdiction to grant takedown or prior restraint orders in proceedings for defamation otherwise than in circumstances prescribed by the 2009 Act. Mr. Justice Binchy expressed “grave concern” whereby persons whose reputations are being seriously damaged by anonymous and untrue internet postings may be left without any legal remedy. He states that if this is a consequence of the 2009 Act, that it was not a consequence intended by the Oireachtas.

Comment
While Mr. Justice Binchy’s Judgment was given in the context of an application for an interlocutory injunction and thus he was not required to decide if Facebook had a good defence to the defamation proceedings, it is an indication that the Innocent Publication Defence is one that an ISP could successfully avail of in defamation cases. This Judgment will therefore be very welcome one for ISPs and any website operator hosting user generated content.

SHOOTING YOUR MOUTH OFF ONLINE CAN COST YOU

The Circuit Court has awarded €75,000 in damages against a Facebook user who had posted a comment suggesting that a certain individual has caused the National Regional Game Council which regulates game shooting in Ireland to go “broke”.

It was asserted by Mr. Desmond Crofton, the National Director of the National Regional Game Council, that this post caused questions to be asked about the running of the organisation and in particular about its’ finances. This comment resulted in Mr. Crofton being suspended from his position, with full pay, while an investigation took place. The Defendant in this case, Mr. John Gilsenan did not appear in Court. Judge John O’Hagan stated that he was granting the maximum allowable damages in the Circuit Court and stated that his Order should “teach people posting messages on the social media site to be very careful”.

Comment
In light of the above decisions it is evident that even though an ISP such as Facebook may have a defence to allegedly defamatory material posted by Facebook users, the Norwich Pharmacal Order procedure will open up certain avenues whereby Plaintiffs can issue proceedings against the individuals in question who posted the defamatory comments. Taking into consideration the decision by Judge O’Hagan to grant Mr Crofton the maximum amount of damages available in the Circuit Court, it would appear that the Courts are willing to penalise individuals heavily as a result of their comments/posts online.

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