03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) 33. The plaintiff also seeks to rely on the case of XY v. Facebook Ireland Ltd. [2012] NIQB 96, which concerned the grant of a “take down” order in respect of a Facebook page containing the name and photograph of a man convicted of sexual offences. In that case, the High Court of Northern Ireland held that the content of the offending web page constituted unlawful harassment of the applicant, and created a real risk of infringing his rights under the European Convention on Human Rights (hereafter “the Convention”). However, it was submitted on behalf of the plaintiff that in these proceedings the case for interlocutory relief is stronger insofar as there is continual repetition and publication of the Reported Content and that it will remain on the defendant’s site until the hearing of the matter, unless interlocutory relief is granted. The plaintiff also relies on the case of Tansey v. Gill [2012] 1 I.R. 380 in support of this argument. In that case Peart J. granted the plaintiff injunctive relief as against the author of the defamatory content in circumstances where he was fully satisfied from the affidavits exchanged that the first named defendant could have no defence to the proceedings. 34. Counsel for the plaintiff also addressed potential defences open to the defendant in the proceedings. In this regard, it is submitted that the defendant did not suggest it intended to rely upon or even lay any ground in support of a defence of truth. It is further submitted that the defence of innocent publication, under section 27 of the Act of 2009 does not arise because the defendant is now aware of the Reported Content. 35. Counsel also addresses the defendant’s argument that the plaintiff will not succeed at the trial of action because his reputation is already tarnished. In response to this argument, it is submitted on behalf of the plaintiff that any findings made by the Ugandan Supreme Court with regard to the plaintiff’s misconduct, or any findings vis-á-vis the professional conduct of the plaintiff are wholly removed from the import of the Reported Content. Furthermore, it is submitted that any evidence in this regard merely goes towards mitigating damages at the trial of the action, and does not preclude the defendant pleading the defence of truth or adducing relevant evidence at trial regarding the plaintiff’s reputation. 36. In addressing the defendant’s argument that equity does nothing in vain and that there is no utility in granting the injunction, it is submitted on behalf of the plaintiff that that argument fails to take account of the fact that the interviews given by the plaintiff were given subsequent to the first postings by TVO and were given by the plaintiff to deny the allegations being made by TVO; it is submitted that such an argument, if successful, would undermine the ability of the Court to grant injunctive relief under section 33 of the Act of 2009. Having regard to the fact that TVO has, since March 2016, posted further articles relating to the bribery allegation, the plaintiff submits that it is highly likely that TVO will persist in posting articles in the absence of the injunction. 37. The plaintiff argues that no prejudice will be suffered by the defendant as a consequence of the granting of the injunction. Finally, it is submitted that there has been no non-disclosure of any relevant material on the part of the plaintiff and that the material related to the proceedings in which the plaintiff was censured by the Supreme Court of Uganda was not material to the Reported Content. Submissions of the Defendant 38. The defendant submits that it is not a publisher of the content complained of by the plaintiff. Accordingly, it may rely upon the defence of innocent publication, as provided for in s. 27 of the Act of 2009, which provides as follows: “27 - (1) It shall be a defence (to be known as the “defence of innocent publication”) to a defamation action for the defendant to prove that— (a) he or she was not the author, editor or publisher of the statement to which the action relates, (b) he or she took reasonable care in relation to its publication, and (c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation. (2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if— (a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material, www.bailii.org/ie/cases/IEHC/2016/H519.html 7/15