03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.” 45. The defendant argues that the prior restraint orders sought would also be ineffective because it is not practically possible for the defendant to exercise such restraint in circumstances where there are 1.09 billion daily active users of its service. Furthermore, the defendant argues, those reliefs sought that specify specific accounts would, if granted, impinge seriously on the fundamental rights of those affected and amount to censorship and invasion of privacy, the former amounting to an interference with freedom of expression as guaranteed by Article 40.6.1 of Bunreacht na hEireann and Article 10 of the Convention, and the latter being contrary to the unenumerated constitutional right to privacy and Article 10 of the Convention. It is further submitted that such orders would also interfere with a number of rights under the EU Charter of Fundamental Rights, including Articles 7, 8, 11 and 16 thereof. Other reliefs sought requiring the defendant to prevent the re-posting of the existing posts and to prevent users from opening other Facebook accounts suffer from the same difficulties and also involve difficulties of enforcement. 46. The defendant submits that on his own account of things, the plaintiff is a public figure and that it is inevitable that some of the material published on the internet about the plaintiff will be critical in nature and will concern controversial matters. The defendant submits that it is well established both in in this jurisdiction as well as in the European Court of Human Rights, that the right to freedom of expression, particularly insofar as it concerns public figures, takes priority over the private life of an individual and that the limits of permissible criticism are broader in relation to politicians and other public figures, than in relation to private citizens. Insofar as these proceedings are more concerned with the law of defamation than they are with privacy, the defendant submits that it is well established since the decision in Bonnard v. Perryman [1891] 2 Ch. 269 that a court will not restrain publication of material alleged to be defamatory because “until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed”. The defendant also relies upon the decision of Reynolds v. Malacco [1999] 2 IR 203 where Kelly J. (as he then was) remarked: “This is “a jurisdiction of a delicate nature” and the court must be circumspect to ensure that it does not unnecessarily interfere with the right to freedom of expression.” Kelly J. went on to say that “damages are the normal remedy for defamation and injunctions are not”. 47. Similarly, the defendant relies on the case of Cogley v. RTE [2005] 4 IR 79 in which Clarke J. held that the first question to be addressed in an application in which a plaintiff seeks prior restraint of a publication or broadcast of material on the grounds that it is defamatory is “whether, on the evidence available at interlocutory stage, it is clear that the plaintiff will ultimately succeed at a trial”. 48. The defendant further submits that where the reliefs sought are mandatory in nature the plaintiff must meet the more onerous requirements of proving not that he has established a bona fide question to be tried, but rather that he has demonstrated that he has a strong case, and the defendant relies upon the decision of Maha Lingam v. HSE [2005] IESC 89 in support of this proposition. Discussion and Decision 49. The first question to be asked in consideration of the matters raised in this application, is whether or not the words complained of are defamatory? There can hardly be any doubt about the answer to this question. To suggest that a practising lawyer has taken a substantial bribe is manifestly defamatory of his character, unless it is proven to be true. Similarly, it seems to me that a suggestion or allegation that a practising lawyer staged a break-in to his own premises for the purposes of orchestrating political subterfuge is also defamatory, unless proven to be true. Reliefs 50. As observed by Kelly J. in Reynolds v Malocco, the normal remedy for defamation of character is of course damages. By this application however, the plaintiff seeks three principle interlocutory reliefs: the first is to take down the material already posted on the defendant’s website platform, the second is to prevent the same activist, or others from re-posting the same material. The third is “Norwich Pharmacal” relief. It is apparent that the second relief sought is in the nature of a prior restraint order. Criteria for interlocutory reliefs sought: www.bailii.org/ie/cases/IEHC/2016/H519.html 11/15