03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) Defamation Act 2009 51. As stated above, s. 33 of the Act of 2009 provides that the Court may, upon the application of a plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made 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. 52. Section 27 of the Act of 2009, the relevant provisions of which I have set out above, provides a defence of innocent publication, the effect of which is that a person shall not be deemed to be the author, editor or publisher of a statement to which an action relates if, in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available. This appears to capture the circumstances giving rise to these proceedings. 53. On the face of it therefore the defendant has available to it a statutory defence to the proceedings issued against it. It was submitted on behalf of the plaintiff that the defendant cannot avail of the defence of innocent publication because it was made aware by the plaintiff of the defamatory material and declined to take it down from its platform. But the criteria for eligibility for the defence are not drawn in this way and at this remove at least it seems likely the defendant is entitled to avail of the defence provided for under s.27(2)(c) of the Act of 2009 and this conclusion by itself has the effect of precluding the plaintiff from obtaining an order under s. 33 of the Act of 2009. Regulation 18(3) of the E-Commerce Regulations 54. Regulations 15-18 of the Regulations also provide another line of defence to the Defendant. In Mulvaney, Clarke J. held, in circumstances very similar to these, that the defendant was entitled to the protection of the Directive (and, therefore, the Regulations), subject to meeting the conditions concerning knowledge and expeditious action as set out therein. The defendant in my view has a reasonable likelihood of success in defending the proceedings on this ground also. For this reason too, the defendant is not eligible for relief under the Act of 2009. 55. The plaintiff however places reliance upon Regulation 18(3) of the Regulations. The effect of Regulation 18(3) is to preserve any power otherwise vested in the Court to make an order against an ISP requiring it not to infringe, or to cease to infringe, any legal rights. It is clear that this Regulation envisages that a court may make such an order even in circumstances where an ISP otherwise enjoys an exemption from liability to a plaintiff by reason of Regulation 18(1). In other words, under the Regulations, an ISP may enjoy immunity in suit for damages, but a court may nonetheless make an order against the ISP, if the Court otherwise has power to make such an order, requiring the ISP not to infringe, or to cease to infringe any legal rights. Importantly however, the Regulations themselves do not confer a power upon the Court to make such an order - the power to do so must be derived from elsewhere. 56. In this regard, the power of the Court to make such orders in actions for defamation is now set out in s. 33 of the Act of 2009, and is subject to the limitations set out therein. For the reasons given above, I have concluded that the plaintiff is not entitled to an order under this section, by reason of the defence that is available to the defendant under s. 27(2)(c) of the Act of 2009. 57. Before the Act of 2009, the Court did of course exercise much the same powers as are conferred by s. 33 of the Act of 2009 in appropriate cases. This jurisdiction was exercised by the court very sparingly, having regard to the importance attached by the courts and by society at large to freedom of expression, and on much the same terms as are expressed in s. 33 of the Act of 2009 i.e. it has always been the case that, in order to obtain an order for prior restraint, a plaintiff was required to demonstrate that there was no doubt that he words complained of were defamatory, and that it was clear that he would ultimately succeed at a trial and that “none of the possible lines of defence which may be open to a defendant could reasonably succeed.” (Per Clarke J. in Cogley v. RTE [2005] 4 IR 79) 58. The Court held when granting the orders sought in the case of Tansey v. Gill [2012] IEHC 42, a case relied upon by the plaintiff in which Peart J. said: “The internet has facilitated an inexpensive, easy, and instantaneous means whereby unscrupulous persons or ill motivated malcontents may give vent to their anger and their www.bailii.org/ie/cases/IEHC/2016/H519.html 12/15