03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) injunction pursuant to s.40 (5A) of the Copyright and Related Rights Act, 2000 (as amended) requiring that the defendant take reasonable steps to prevent its subscribers from using the defendant's internet service for the purpose of breaching the plaintiffs' copyright in the plaintiffs' sound recordings. Section 40(5A) of that Act was inserted into the Act in order to give effect to article 8(3) of EC Directive 2001/29 (the “Copyright Directive”).That article provides that: “8(3) member states shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” 28. At paragraph 99 of his judgment in Sony, Cregan J. stated: “It is clear therefore that Article 8(3) provides that Member States shall ensure that rights holders (such as the plaintiffs) are in a position to apply for an injunction against intermediaries (such as the defendants) whose services are used by a third party to infringe a copyright or related right. Thus it is clear that the directive envisages injunctions being obtained against intermediaries by rights - holders to ensure third party subscribers do not infringe copyright. Thus European law permits the granting of an injunction against a person (such as the defendant) even where they have committed no legal wrong.” Counsel for the plaintiff argues that Regulation 18(3) of the Regulations is analogous to Article 8(3) of the Copyright Directive and that the decision of Cregan J. makes it clear that the Court has the power to grant the kind of relief sought in these proceedings. 29. Counsel for the plaintiff acknowledges that interlocutory injunctions restraining publication of defamatory material are rarely granted by the courts. However, he argues that the authorities establish that the first question to be addressed in applications of this kind is whether the plaintiff has established a prima facie case that he will succeed at the trial. He refers to cases such as Reynolds v. Malocco and Ors [1999] 2 IR 203 and Cogley v. RTÉ [2005] 4 IR 79 .While these cases make it clear that to obtain injunctive relief a plaintiff must be able to demonstrate that there is no doubt that the words complained of are clearly defamatory, nonetheless, counsel for the plaintiff argues that these authorities, and Reynolds in particular, also make clear that in resisting an application such as this, a defendant who intends to plead justification must put forward some credible basis to suggest that the plaintiff will not succeed at trial. 30. The plaintiff accepts that the defendant is not the author of the Reported Content but submits that the defendant is in an analogous position to the publisher of the same. In this regard, counsel for the plaintiff relies on Byrne v. Deane [1937] 1 KB 818, where the question of publication was discussed as follows:“It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so.” 31. Counsel for the plaintiff also referred the court to Cox and McCullough’s Defamation Law and Practice (Clarus Press, 2004 at 2.15) where it is stated:“Publication arises not just where an original defamatory statement is published, but also where an existing defamation is repeated or even where a defamatory statement is left in place where it is reasonably foreseeable that it could be noticed and where the person responsible for the location where the statement has been left can be taken to know of and to have assumed responsibility for its existence, and can therefore be regarded as having been involved in the act of publication.” 32. Counsel for the plaintiff submits that Regulation 18 of the Regulations reflects these remarks to an extent, requiring as it does an ISP to have actual knowledge of defamatory content. He argues that in this case the defendant has had such knowledge since it was first put on notice of the same by the plaintiff. He also submits that the stringent test which hitherto applied to the hearing of an interlocutory application in a defamation action has been further diluted by section 33 of the Act of 2009 which empowers the Court to make an order prohibiting publication, or further publication of the statement if in the Court’s opinion the statement is defamatory, or, the defendant has no defence to the action that is reasonably likely to succeed. He points out that the Regulations and the Act of 2009 both post- date Reynolds and Cogley. www.bailii.org/ie/cases/IEHC/2016/H519.html 6/15