03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) expeditiously to remove same. In this regard the defendant says that it does not know whether or not the Reported Content is unlawful, and that it is therefore entitled to the benefit of the protection afforded by Regulation 18. 41. The defendant relies upon the decisions of the Court of Justice of the European Union (“CJEU”) in the cases of Scarlet v. SABAM [C-70/10, 24th November 2011] and SABAM v. Netlog NV (C-360/10) [2012] 2 CMLR 18. In those cases the CJEU had to consider whether or not the imposition upon the defendant, which in each case was an ISP used by third parties to access music and other materials protected by copyright, of an obligation to monitor the data of their customers in order to prevent infringement of intellectual property rights owned by members of the plaintiff, was in compliance with, inter alia, the e-commerce directive. The imposition of such an obligation would have required the defendant to install complicated and costly systems at its own expense, and would also have involved the identification and analysis of customers’ data. The CJEU had to weigh on the one hand the protection of the intellectual property rights belonging to those represented by the plaintiff against, on the other hand, freedom to conduct a business, the right to protection of personal data and the freedom to receive or impart information. The CJEU considered that the imposition of an injunction requiring the defendant to install a system for filtering all electronic communications passing via its services, which would be applied indiscriminately to all of its customers and for an unlimited period, in order to prevent illegal downloads of music, to be disproportionate and contrary to the e-commerce directive. The defendant submits that the prior restraint orders sought by the plaintiff in this case would similarly offend the e-commerce directive. 42. The defendant relies also upon the decision of Clarke J. in Mulvaney v. The Sporting Exchange Ltd. t/a Betfair [2009] IEHC 133. In that case the plaintiff claimed to have been defamed by material posted on a Betfair chatroom by Betfair clients. In addition to bringing proceedings against those who posted the material, the plaintiff sought relief against Betfair as operator of the chatroom. Betfair relied successfully upon Regulation 18 of the Regulations in its defence. Clarke J. held:“As the service provided by Betfair, through its chatroom, clearly falls within the meaning of “relevant service” as defined by the 2003 Regulations, it follows that Betfair, in providing this service, is a “relevant service provider” and so an “intermediary service provider” within the meaning of the 2003 Regulations. Betfair is, therefore, entitled to the benefits of Regulations 15 and 18 of the 2003 Regulations.” The determination made by Clarke J. in Mulvaney was made by way of the determination of a preliminary issue, not in the context of an application for prior restraint orders. The effect of the decision was to declare that the defendant was eligible to avail of the defences provided by the Regulations, subject to the conditions concerning knowledge and expeditious action set out in the Regulations. 43. The defendant submits that it is in the same position as Betfair was in Mulvaney - the defendant merely posts comments and material in a manner entirely analogous to chatroom hosting. Accordingly, the defendant submits, it is entitled to benefit from the relevant defences set out in the Regulations and it must succeed with those defences in circumstances where it has never had actual knowledge that the content published by TVO about the plaintiff was defamatory or otherwise unlawful. 44. It is also submitted on behalf of the defendant that the substance of the Reported Content, and other highly critical commentary of the plaintiff is available on other internet sites; moreover, the plaintiff has given an interview to the media which was reported very widely, and in which he refuted the very allegations that he now seeks to suppress. Accordingly the “take down” orders sought by the plaintiff , even if granted, will be ineffective because the same material the plaintiff wants taken down from the defendant’s site remains easily accessible elsewhere on the internet . Accordingly, the defendant submits, the orders sought by the plaintiff should not be granted because “Equity, like nature, does nothing in vain”. The defendant relies on the authority of Mosley v News Group newspapers ltd 2008 EWHC 687 (QB), 36 wherein Eady J said:“In the circumstances now prevailing, as disclosed in the evidence before me, I have come to the conclusion that the material is so widely accessible that an order in the terms sought would make very little practical difference. One may express this conclusion either by saying that Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact www.bailii.org/ie/cases/IEHC/2016/H519.html 10/15