03/02/2020 Muwema -v- Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) therefore in this case significant merit in the argument made by counsel for the defendant that “the genie is out of the bottle” and injunctive relief would be in vain. 64. In conclusion, the jurisdiction of the Court to make the orders sought by this application (save for the “Norwich Pharmacal” orders) is now subject to the limitations prescribed by the Oireachtas in s. 33 of the Act of 2009. This section makes it clear that such orders may only be granted in circumstances where it is clear that the defendant has no defence that is reasonably likely to succeed. In my view this applies equally to a “takedown” order as much as it does to a prior restraint order. At this remove, it is difficult to see how it could be said that the defendant is not reasonably likely to succeed with the defence to the proceedings provided for in s. 27 of the Act of 2009. Moreover, I am of the view that in this case the application should also be refused because it would serve no useful purpose, having regard to the availability of publications containing the same and other damaging allegations about the plaintiff elsewhere on the internet. For these reasons, I consider that the application for takedown and prior restraint orders must be refused. I will however make a “Norwich Pharmacal” order in the terms that I understand the parties have agreed. 65. I have come to the first of the conclusions above with some unease. It is clear that the Regulations, while protecting ISPs from actions for damages in circumstances such as arise in this case, at the same time envisage the granting of appropriate injunctive relief to safeguard the legal rights of those whose rights might otherwise be infringed by the activities of the customers of ISPs. Similarly, the Act of 2009 protects ISPs from actions for defamation where they are innocent of the publication of the defamatory material. However, the Act of 2009 does not permit of the granting of injunctive relief against an ISP in circumstances where the ISP is likely to have a defence to the proceedings. It is true that this broadly reflects the law prior to Act of 2009. But the principles governing applications for prior restraint orders prior to 2009 were based upon the proposition that damages were the appropriate remedy in cases of defamation. The Act of 2009 now provides a shield against damages (as indeed do the Regulations) to defendants meeting its requirements, and the same shield also prevents the Court from granting injunctive relief to persons claiming to be defamed. Thus, it appears, a person who has been defamed by an internet posting may be left without any remedy at all, unless the author is identified and amenable to the jurisdiction of the Court. Moreover, because of the all encompassing nature of the defence afforded by s.27 of the Act of 2009, a person subjected to a defamatory posting to which the defence applies cannot succeed in any manner in the proceedings, and the problem is not therefore confined to interlocutory applications; the victim, it appears, can never obtain relief as against the ISP. This begs the question as to whether the Court has jurisdiction to grant takedown or prior restraint orders in proceedings for defamation otherwise than in the circumstances prescribed by the Act of 2009. The Court had such jurisdiction prior to the Act of 2009, but now that the Oireachtas has legislated in the area, it seems to me to be strongly arguable that such orders may only be made within the strictures of the Act. Unfortunately, this question was not addressed in these proceedings, other than it was argued on behalf of the plaintiff that such orders could be made pursuant to the Regulations, but for the reason given above I do not believe this is so. If my concerns are well founded however, it is a matter of grave concern. Persons whose reputations are seriously damaged by anonymous and untrue internet postings may be left without any legal remedy against the site hosting the publication, even in the most flagrant of cases. The reluctance of the courts here and in other jurisdictions to grant prior restraint orders reflects the importance attached by the courts and society at large to freedom of expression. There must be a doubt however about whether an ISP, which disclaims any responsibility for or interest in the material complained about, is entitled to assert in defence of an application such as this, the right to freedom of expression of a party who has chosen to remain anonymous and remains at the time of the hearing of the application unidentified and beyond the jurisdiction of the Court, and who in any event does not have a right to publish defamatory statements. If this is indeed a consequence of s.27 of the Act of 2009, I doubt very much if it is a consequence intended by the Oireachtas. www.bailii.org/ie/cases/IEHC/2016/H519.html 14/15