03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) perceived grievances against any person, where the allegations are patently untrue, or where no right thinking person would consider them to be reasonable or justified. By such means, anything can be said publicly about any person, and about any aspect of their life whether private or public, with relative impunity, and anonymously, whereby reputations can be instantly and permanently damaged, and where serious distress and damage may be caused to both the target, children and adults alike, leading in extreme cases to suicide. So serious is the mischief so easily achieved that in my view the Oireachtas should be asked to consider the creation of an appropriate offence under criminal law, with a penalty upon conviction sufficient to act as a real deterrent to the perpetrator. The civil remedies currently available have been recently demonstrated to be an inadequate means of prevention and redress.” In that case, Peart J. went on to hold that the material complained of was seriously defamatory of the plaintiff and that the first named defendant would have no prospect of succeeding with any defence he wished to put forward at trial. Accordingly, he said that he had no hesitation in granting the interlocutory relief sought, and insofar as one of those reliefs included a mandatory interlocutory order, he was satisfied that the plaintiff had overcome the higher threshold for the granting of such an order. 59. The very significant difference between Tansey and these proceedings is that in Tansey the first named defendant was the author and publisher of the defamatory material and the Court had the benefit of being able to receive and consider his affidavits, and to form a view as to whether or not the first named defendant had a credible defence. The Court concluded that the defendant had no defence available to him that was likely to succeed, and therefore proceeded to make an order under s.33 of the Act of 2009. In these proceedings however, the only defendant before the Court is the ISP which, for the reasons set out above, I consider is likely be able to avail of the statutory defence of innocent publication as provided for in s.27(2)(c) of the Act of 2009. 60. The plaintiff also relies upon the decision of Cregan J. in Sony, a decision recently upheld by the Court of Appeal. In Sony, Cregan J. noted that Article 8(3) of the Copyright Directive requires Member States to ensure that rights holders are in a position to apply to the courts for an injunction against intermediaries whose services are used by a third party to infringe a copyright. It is submitted on behalf of the plaintiff that Regulation 18(3) of the Regulations is analogous to Article 8(3) of the Copyright Directive. This is clearly not so however, because Article 8(3) of the Copyright Directive mandates Members States to ensure injunctive relief is available in cases of infringement of copyright; Regulation 18(3) as already observed (and indeed the corresponding article in the Directive, article 14(3)) merely confirms the continuation of powers otherwise vested in the Court. 61. Furthermore, the circumstances in which Cregan J. granted relief in Sony were very different. That was an action for breach of copyright in circumstances where the parties were in agreement that, in the words of Cregan J. “ there is wholesale theft of the plaintiff’s intellectual property taking place on the defendant’s network” (paragraph 243). The order made by the Court in that case was made pursuant to powers expressly conferred upon the Court under section 40 (5)(A) of the Copyright and Related Rights Act ,2000 (an amendment to that Act that was made for the very purpose of complying with the obligations of the State under article 8(3) of the Copyright Directive), a very different statutory regime to that applying in this case. 62. These difficulties aside, I think that in this case the plaintiff faces the additional problem in the futility of the Court making the orders sought. Even though the equitable principle that “equity does nothing in vain” cannot, strictly speaking, have any application in circumstances where the remedy sought is pursuant to statute, nonetheless the statutory remedy is discretionary and in my view the Court should not grant the orders sought if they are unlikely to serve any practical purpose. 63. In this regard, the defendant has brought to the attention of the Court other content elsewhere on the internet concerning the plaintiff. Some of that content concerns comments made about the plaintiff by a Supreme Court judge in Uganda, which it may fairly be said is altogether of a different character to that complained of by the plaintiff in these proceedings, even though most, if not all, lawyers would prefer not to read of such matters concerning themselves in the media. However, there are also articles about the plaintiff concerning the very matters concerned in these proceedings. Those articles arise out of interviews that the plaintiff himself gave in order to deny the very allegations with which these proceedings are concerned. The plaintiff was perfectly entitled to give such interviews to defend his reputation, but having chosen to do so he himself becomes a participant in the publication of the allegations, so that anybody conducting the most rudimentary google search (to use the words of counsel for the defendant) will be presented with articles which repeat the same allegations about the plaintiff, albeit accompanied by a denial on the part of the plaintiff. There is www.bailii.org/ie/cases/IEHC/2016/H519.html 13/15