03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) reputation as a lawyer and takes issue with the fact that they remain visible on the defendant’s site. The plaintiff further avers that since the publication of the posts, a number of his colleagues, acquaintances, business associates and clients have queried and remarked on the articles, which according to the plaintiff, has caused him anxiety and severe stress; he also avers that he has been held up to public ridicule, contempt and threats. Defendant’s Replying Affidavit 10. The defendant delivered a replying affidavit sworn by a Mr. Jack Gilbert, its lead litigation counsel on 9th June, 2016. In his affidavit, which contains a mixture of averments as to fact and legal submissions, Mr. Gilbert avers that it is not legally required of or possible for the defendant to monitor proactively material published by its users on the Facebook site; as of March 2016, there were 1.09 billion daily active users of the Facebook service and 1.65billion monthly active users. It is averred that given the sheer amount of content on the site, comment and opinion about public figures and politicians is inevitable. Mr. Gilbert refers to the defendant’s community standards which are are annexed to its “Statements of Rights and Responsibilities” and in respect of public figures those standards state (according to Mr Gilbert): “Facebook permits open and critical discussion of people who are featured in the news or have a large public audience based on their profession or chosen activities. Facebook removes credible threats to public figures, as well as hate speech directed at them - just as it does for private individuals.” 11. Mr. Gilbert avers that the defendant is not a publisher of content on the Facebook site, and that the defendant did not publish or cause to be published any of the Reported Content. It is stated that the defendant is an information society service provider within the meaning of the E-Commerce Directive, i.e. Directive 2000/31/EC (hereafter “the Directive”) as transposed into Irish law by the European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. 68 of 2003) (“hereafter “the Regulations”) and as such, the defendant is not liable for any allegedly defamatory content created by its users. In this regard, Mr. Gilbert avers that the defendant will be entitled to rely upon the defence of innocent publication pursuant to Section 27 of the Act of 2009. It is further stated that the defendant is not an arbiter of fact and is not in a position to determine the truth or falsity of the Reported Content. 12. Mr. Gilbert avers that the plaintiff does not assert in his grounding affidavit that the Reported Content is untrue. The defendant also seeks to highlight the lack of contextual background provided by the plaintiff in respect of the publication of the Reported Content. It is averred that by conducting a simple “google” search, the defendant located a number of articles online concerning the plaintiff, including the following: (a) A decision of Kitumba J. in the Supreme Court of Uganda of 3rd July 2014, wherein the Judge makes a number of comments about the plaintiff’s misconduct as a lawyer, including that the plaintiff behaved unprofessionally throughout the proceedings and misrepresented events that occurred in the judge’s chambers; that he completely lost control and treated the judge like a criminal or witness under cross examination; that the plaintiff was suspended from a certain court until his disciplinary proceedings before the Law Council were heard. (b) An article entitled “Court blocks sh8b payment of city lawyer” dated 14th July 2014 wherein it is alleged that the plaintiff entered into an agreement with an oil company, whereby he would be paid costs plus 16% of the proceedings from a case, with an extra 4% if the case was appealed, by way of remuneration for representing the oil company concerned and that the Supreme Court ruled such an agreement as illegal; (c) An article entitled “Supreme Court Orders Lawyer Muwema Arrest over Shs 4bn” dated 21st August 2015, in respect of the alleged agreement referred to at (b). (d) An article entitled “Lawyer Muwema Denies Taking Sh900m To Betray Mbabazi” dated 21st March 2016, in which the plaintiff refuted social media allegations that he took a Shs900 million bribe to undermine a presidential election petition. The article goes on to allege that the plaintiff organised a break-in to his own chambers during the course of which affidavits were stolen. (e) An article entitled “Mbabazi Petition: Muwema Fires Back on Shs 900m Bribe” dated 21st March 2016, wherein the plaintiff refuted social media claims of bribes and denied any involvement in the break-in at his law offices. www.bailii.org/ie/cases/IEHC/2016/H519.html 3/15