Authored By: NALULE SAUDAH
CAVENDISH UNIVERSITY UGANDA
CASE TITLE: MUWEMA V FACEBOOK IRELAND LTD
COURT NAME: IRISH COURT OF APPEAL
DATE OF JUDGEMENT: April, 19, 2018
CITATION: (2018) IECA 104
JUDGEMENT BY; PEART J
Introduction
Muwema v Facebook Ireland ltd is a very significant case in internet speech regulation.it explored the protection of freedom of speech in context of online defamation and liability of internet service providers for the acts of an anonymous third party. Establishing the principle of balancing the tension between competing constitutional rights and weighing them to find out the one that prevails when granting Norwich pharmacal order.
Parties involved
Appellant: Muwema, a Ugandan well known lawyer and partner in the Ugandan firm of Muwema & Co. Advocates and solicitors.
Respondent: is the operator of the Facebook, a well-known social media service which provides an internet platform.
FACTS OF THE CASE
The plaintiff, a Ugandan lawyer brought proceedings against the defendant claiming for damages for defamatory articles posted on Facebook page by a third party using pseudonym Tom Voltaire Okwalinga (TVO) in March 2016. The plaintiff alleged that the articles falsely accused him of accepting bribes in the amount of US $ 260, 000, staging a break-into his law firm in order to jeopardise a presidential election and petition and that now the plaintiff is being under constant armed guard. The plaintiff avers that these posts endangered his reputation as a lawyer and safety as well as that of the firm and his credit. However, the identity and location of the user of TVO was unknown to the appellant. Prior to the proceedings, the plaintiff notified Facebook and requested that they remove the defamatory posts however, Facebook Ireland ltd argued that they couldn’t remove the content without a court order since they couldn’t evaluate the truth or falsely of the posts. The plaintiff then filed these proceedings seeking injunction orders including;
- A permanent order under section 33 of the defamation act 2009 prohibiting the publication or the further publication of the defamatory articles.
- In the alternative, an order under section 33 of the defamation act 2009 prohibiting publication or further publication of a number of posts set out in the schedule to the plenary summons and appearing on the Facebook page of TVO.
- An order that the defendant or any person having notice of the order cease and desist in the further publication of the defamatory articles.
- A Norwich pharmacal order, an order directing the respondent to provide the plaintiff with any necessary detailed relating to the identities and location of the user who operates under TVO Facebook page.
The High court, (Binch j), refused to grant a Norwich pharmacal order for disclosure of the user’s identity. The court decided that the identity of the author should not be disclosed under a Norwich pharmacal order so as to protect the author of the posts from the risk and harm since the posts were critic of the government revealing his identity would expose them to arrest and ill-treatment by Ugandan authorities.
The plaintiff appealed this decision
LEGAL ISSUES RAISED
Primary issue
- Whether the trial judge erred in law and facts by refusing to grant the Norwich pharmacal order to disclose the identity of the user of TVO on ground that it would expose the user to the risk.
Sub-issues
- How to balance the plaintiff’s right to access against the user’s right to life and bodily integrity and whether disclosure of the identity may lead to human rights abuse.
- What evidential standard is required to establish a real risk likely to be faced by the user of TVO to outweigh the plaintiff’s right to disclosure
ARGUMENTS OF THE PARTIES
Appellant’s argument (Muwema)
- The appellant argued that the evidence presented by the respondent did not establish a real risk of harm to justify the refusal of Norwich pharmacal order.
- The judge placed excessive weight on respondent’s evidence yet it was hearsay and affidavit and less weight on plaintiff’s evidence.
- The user was aware of the consequences of his actions that they will be sought by the authorities but continued to post the articles critic to the government an indication that the risk of harm was not as severe as the respondents claim.
- It’s lawful for Ugandan authorities to arrest the user for the alleged offences and try them under Ugandan law
- The trial judge disproportionately relied on the judgement in Foley v independent newspaper and the gravity of risk was set too high.
Respondent’s arguments (Facebook Ireland ltd)
- In their worn affidavit, the respondents argued that disclosure of the user would cause them risk and expose them to ill-treatment, torture and serious abuse of human rights by the Ugandan authorities.
- The respondents also argued that the identity of the user is protected by the right to life and bodily integrity. That the right to life and bodily integrity takes precedent over the plaintiff’s right to access justice in the instant case.
- They also argued that the evidence presented was sufficient to justify the refusal of the Norwich order. Therefore, the trial balancing exercise was appropriate and met the required standard.
- They also argued that the evidence presented was substantial as it included various violation of human rights, mistreatment experienced by different persons accused of similar offences.
Cases relied on
The court relied on the principles set out in the following cases to reach to its final decision.
- Foley V Sunday News Papers Ltd (2005) 1 IR 88, the principle cited was; the right to freedom of expression yields to the right to life and bodily integrity where there is real risk of harm. The trial judge relied on this case to establish the user’s right to life and bodily integrity.
- Minister for Justice V Rettinger (2010) 3 IR 783, the principle set out in this case was the evidential standard to prove a real risk of ill-treatment. The court relying on this case adopted that the standard of cogent and convincing evidence which is required to establish the real risk.
- Rugby Football Union V Consolidated Information Services Ltd (2012) 1 WLR 3333, this case established the principle that Norwich pharmacal order may be refused if it is against public policy. The court relied on this case to deny the order.
- P.U.C V Grogan (1989) IR 743, the principle which was relied on in this case was that of balancing the constitutional rights, that competing constitutional rights must be weighed against each other.
FINAL DECISION
The court of appeal dismissed the appeal upholding the high court’s refusal to grant Norwich pharmacal order.
The court held that the risk to the user outweighed the appellant’s right to obtain disclosure.
Peart j held that was satisfied that there was no error of law in the trial judge’s conclusion that he was satisfied with the evidence presented to establish the necessary level and on balance of probability that there was a real risk posed to the life and bodily integrity of the user of TVO.
LEGAL REASONING /RATIO DECIDENDI
The court of appeal reviewed the evidenced presented and the principle governing the Norwich pharmacal order. It noted that the plaintiff has a prima facie right to pursue a defamation action against the third party by obtaining a Norwich order, however the order is discretionary and may be refused if the order contravenes public policy or individual’s right.
The court applied the Norwich pharmacal jurisdiction. Weighing between the right of the appellant to access justice and user’s constitutional right to life. The individual right to life and bodily integrity prevails over the right to disclosure. Therefore the human rights abuse if present outweighs the right to pursue defamatory proceedings.
The court of appeal accepted that the trial judge’s ruling that the evidence which was presented by Facebook was sufficient and credible to establish a serious risk of harm against the user including torture, ill-treatment and other human rights abuse should the user’s identity be disclosed.
Principle
Establishing the equitable jurisdiction to order disclosure of third party information. Norwich pharmacal order is subjected to the balancing competing interests
Significance of the case
The decision in the case highlights the tension between protecting freedom of expression and safeguarding the reputation of the parties. Balancing between the competing interests and rights of the parties.
Conclusion
The primary issue in the case was about the refusal to grant the Norwich pharmacal order. The decision in the case showed that, the applicant is has a right to obtain the Norwich pharmacal order which is discretionary in nature in that the court when granting such an order it has to put into consideration the rights of the party to whom the order is against and the rights of the party applying for the order. And in any case where there is human rights abuse detected, the human rights of the individual prevail over the right of the applicant to obtain the disclosure. This however, on the other hand, deny justice to the other party whom the Norwich balance is against, in this case the appellant.
Reference(S):
Foley V Sunday News Papers Ltd (2005) 1 IR 88,
Minister for Justice V Rettinger (2010) 3 IR 783
Rugby Football Union V Consolidated Information Services Ltd (2012) 1 WLR 3333,
S.P.U.C V Grogan (1989) IR 743
Muwema v Facebook Ireland ltd (1018) IECA 104
