Update – Norwich Pharmacal Order refused where Facebook discovered compliance may lead to persecution of Facebook user


In a previous article, we noted that the High Court had ruled that Facebook Ireland Limited ("Facebook") was not obliged to remove the defamatory posts of an anonymous third party and that the Court opted instead to exercise its discretion and made a Norwich Pharmacal order, allowing and requiring the identity of the user to be disclosed by Facebook.

Mr Muwema, a Ugandan lawyer (the "applicant"), initiated proceedings when a number of "false scurrilous and defamatory" comments were posted under the pseudonym "TVO".

New Evidence

In the normal course of events, a Norwich Pharmacal Order would not be opposed by Facebook, however these circumstances were highly unusual.  Facebook sought to put new evidence before the court that if it revealed the identity of TVO, then there was considered to be a serious risk that he would be subjected to torture, cruel or inhumane treatment by State agents of Uganda. Facebook stated that TVO maintained a Facebook page critical of the Ugandan Government, and that he had been the subject of numerous attempts by the Ugandan State to censor him and to obtain his identity via numerous requests made to Facebook.

Facebook argued that this new evidence was only discovered when it sought to comply with the Norwich Pharmacal Order. The Court found that generally a party seeking to adduce new evidence would not be able to argue that it was not offered previously because it was later discovered following administrative procedures.  Although this evidence was always available to Facebook, the nature of the evidence and consequences of refusing to admit it, meant the Court was required to take a different approach to its admittance.

The Plaintiff argued that if the Court allowed and accepted the new evidence, this would mean that TVO would be able to continue publishing defamatory material of him on Facebook.

Right to Good Name vs Right to Life

Ultimately, despite the previous finding that the posts were defamatory of the Plaintiff, the Court held that the right to a good name must give way to the right to life and bodily integrity in the event of a conflict. Thus the application for a Norwich Pharmacal Order was refused but the Court noted that TVO should remove the defamatory postings within 14 days, otherwise the application could be renewed by the Plaintiff and would likely be granted.

Muwema v Facebook Ireland Ltd (No. 2)  [2017] IEHC 69 is available here.

See previous William Fry Article here

Contributed by Catherine Thuillier

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