03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) 20. The plaintiff also takes issue with the defendant’s stance that it takes no position with regard to the truth or falsity of the Reported Content. He argues if that were the case, no content would ever be removed by the defendant. The plaintiff states that the defendant cannot rely on section 27 of the Act of 2009, in circumstances where he avers that the defendant has failed to take any reasonable care in respect of the publication of the Reported Content. Mr. Muwema also avers that in a letter dated 19th April, 2016 from Messrs Lavelle it was unequivocally stated that the Reported Content was “false, offensive and grossly defamatory.” He further avers that the Reported Content is “untrue and without foundation.” 21. By way of response to a number of assertions in the defendant’s replying affidavit, the plaintiff states that it is unclear what background he was expected to give in respect of the matters outlined by the defendant, and notes that the defendant did not provide any background itself in connection with the Reported Content. The plaintiff avers that in respect of the case in which he was subjected to censure by the Ugandan Supreme Court, he was also a party to those proceedings and that if the Court reads the judgment of the Ugandan Supreme Court in full, it will be clear that the judge acted beyond her powers and should have merely suspended the plaintiff from appearing in her court as opposed to the entire commercial court. The plaintiff also avers that no complaint had been lodged in the Ugandan Law Council against him, nor has any sanction been imposed on him in respect of any proven professional misconduct. It is also averred that the plaintiff has brought a constitutional challenge in the Ugandan courts in connection with the above. 22. The plaintiff also avers that the article discussed at paragraph 12(c) above dated 21st August 2015, was published in an online tabloid publication in Uganda, which he avers publishes mainly sensational stories and gossip. He states that nowhere in the judgment referred to in that article was it ordered that he pay the amount stated therein and he also denies that a warrant was issued for his arrest. He states that a number of the other articles referred to by the defendant deal with interviews and denials that he has given since the posting of the Reported Content. The plaintiff avers that he continues to be retained by clients in high profile litigation in Uganda. 23. The plaintiff goes on to state that prior to March 2016, his professional standing remained intact and contends that before this date there were no allegations of bribery. He avers that the break-up of his law firm and the departure of his former partner was unrelated to the issues the subject of these proceedings. The plaintiff denies that he failed to disclose any relevant material to the Court. Submissions on behalf of the Plaintiff 24. Counsel on behalf of the plaintiff submits that the allegations contained in the Reported Content are extremely grave and that the nature of the allegations are extremely damaging for the plaintiff in light of his profession, and the fields of work in which his firm practices. 25. Counsel also submits that the defendant has a Statement of Rights and Responsibilities (hereafter “the Statement”) with which it should comply. In particular, counsel points to section 3.9 thereof, which states “…[account holders] will not use Facebook to do anything unlawful, misleading, malicious or discriminatory.” Counsel also points to the fact that the Statement purports to respect other people’s rights by virtue of sections 5.1 and 5.2 thereof wherein it states that a user cannot post content that “infringes or violates someone else’s rights or otherwise violates the law.” Section 5.2 of the Statement states that Facebook will remove any content or information posted on the website, if they believe that it violates the Statement. Counsel also relies on section 14 of the Statement, which states that any violation of the Statement can result in the defendant discontinuing all or part of the Facebook account. It is submitted on behalf of the plaintiff that notwithstanding these commitments in the Statement, it was necessary for the plaintiff to issue these proceedings and to bring this application in light of the fact that there was no response by the defendant to the plaintiff’s request to remove the Reported Content. 26. Counsel for the plaintiff acknowledges that the Directive and the Regulations provide a degree of protection to internet service providers (hereafter “ISP’s”), such as the defendant, in connection with their activities, and that a number of defences for ISPs are set out at Regulation 18 of the Regulations. However, counsel for the plaintiff relies on Regulation 18(3) of the Regulations which provides: “(3) This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights.” 27. Counsel for the plaintiff also relies upon the case of Sony Music Entertainment (Ireland) Ltd. v. UPC Communications Ltd. (No.1) [2015] IEHC 317. In that case Cregan J granted the plaintiff an www.bailii.org/ie/cases/IEHC/2016/H519.html 5/15