Defamation
Dardis v Bus Éireann
[2016] IEHC 621
JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.
I. Facts
1. Bernadette Curtis (“Ms Curtis”) and her sister, Joan Dardis (“Ms Dardis”), are regular visitors to the Shrine of Our Lady of Knock. On 23rd June, 2013, they went with eight family members to Busáras. Among those family members was Ms Dardis’ adult daughter, Jennifer (“Ms Jennifer Dardis”). The intention of the family-party was to take a bus from Busáras to Athlone, and to change bus there for Knock.
2. Ms Curtis and Ms Dardis were travelling on free travel passes. Ms Curtis is entitled to such a pass as she has a disability. Ms Dardis was travelling on a carer’s pass; however, the person for whom she cared had, regrettably, passed away some years previous to June, 2013, and a carer’s pass is only good for free travel when the holder of same is travelling with the person for whom s/he cares. So Ms Dardis had no entitlement to travel on the carer’s pass.
3. Ms Jennifer Dardis had her two children with her, one a toddler, the other nine years old. When the family party got on the bus, the toddler was resting on her mother’s shoulder. So Ms Jennifer Dardis asked if she could settle the child before paying the driver. He agreed to this and continued to take fares from other passengers who were boarding. When, after a few minutes, Ms Jennifer Dardis had not returned to pay the fares owing, the driver went down the bus to collect those fares.
4. According to both Ms Curtis and Ms Dardis (no-one else from the family-party gave evidence), Ms Jennifer Dardis had by this time sent her son up the bus with a €50 note to pay the driver; however, he refused to take money from a child. The driver, a soft-spoken gentleman, who gave evidence and who did not strike the court as a person who would be roused swiftly to temper, denied that he was ever approached by the nine-year old or refused to take payment. The court believes him and does not believe that Ms Jennifer Dardis ever sent her son up the bus with a €50 note.
5. In terms of what the driver allegedly did next, there was a striking inconsistency in the evidence offered by the two sisters. Ms Curtis claims that the driver came down the bus, roused to a temper by the fact that a nine year-old had been sent to pay him, asked to see the passes that the older passengers were using, and then said words to the effect of ‘Right, all of you off the bus.’ Ms Dardis’ account was different. She said the driver came down the bus and asked Ms Jennifer Dardis to pay. (This is also what the driver says he did). At this point, according to Ms Dardis, Ms Jennifer Dardis indicated that she was not going to pay for her children.
6. It is not clear why, after getting on the bus, Ms Jennifer Dardis had an apparent change of mind as to the need to make payment. The evidence of both appellants is that Ms Jennifer Dardis asked the driver if she could settle the child before paying, a request to which the driver politely acceded. Yet a few minutes later, according to Ms Dardis, Ms Jennifer Dardis was telling the driver that she was not obliged to pay the fares that he was seeking. In any event, according to Ms Dardis, after the driver met with Ms Jennifer Dardis’s refusal to pay, he asked to see the passes that various family members were using. Then, she claims, he erupted into a temper and said words to the effect of ‘Right, all of you off the bus’.
7. In short, according to Ms Curtis, the driver came down the bus in a temper because Ms Jennifer Dardis’ son had the audacity to offer payment. But, according to Ms Dardis, the driver came down the bus, sought payment of Ms Jennifer Dardis, and then erupted into a temper.
8. The inconsistencies do not end there. According to Ms Curtis, after the driver directed everyone to get off the bus, they did so. Yet she went on to say that when the Gardaí were called to resolve the altercation that had now arisen between the driver and the family group, she (Ms Curtis) was still on the bus. Ms Dardis’s testimony was that when the driver asked everyone to get off the bus, they did. Which sister’s evidence is to be preferred? In fact, the court prefers the evidence of the driver which was entirely coherent, contained no inconsistencies, and chimes with common-sense. He stated simply that he came down the bus, asked for payment, was refused payment, and went to fetch an inspector.
9. Around this time, the Gardaí were called for, presumably at the behest of the inspector, to resolve the difficulty that had now arisen. The evidence of the garda who attended at the scene, evidence that the court accepts as entirely true, was that, when he arrived, the family-party was still on the bus and that he (quite sensibly) asked them to get off so that matters could be resolved discreetly instead of in front of all the other passengers. The family-group acceded to this invitation and got off the bus. The fact that they were still on the bus at the time the garda arrived gives lie to the suggestion that the driver put the family-group off the bus.
10. The discussion that followed with the garda was calm and there was no great altercation. Both driver and garda indicated in evidence that at no stage was there ever any offer by any of the family-party to hand over the €50 that Ms Jennifer Dardis (according to both Ms Curtis and Ms Dardis) had allegedly handed to her child, only to deny moments later (according to Ms Dardis) that she was liable to pay a fare. Had there been such an offer, the driver indicated, he would simply have accepted the payment and headed off with the bus. But no payment being forthcoming, the family party could not travel as a complete party on the bus. So the bus left without them and they took a taxi to Heuston Station where they caught the train to Claremorris and travelled together to Knock.
11. What does the court accept to be the true facts of what occurred? It has indicated some of its conclusions above but it is as well to re-state them here:
(1) the family-party boarded the bus;
(2) Ms Jennifer Dardis asked if she could settle her infant child before paying such fares as were due;
(3) the driver acceded to this request;
(4) no payment being forthcoming, the driver subsequently went down the bus to collect the fares due from Ms Jennifer Dardis;
(5) Ms Jennifer Dardis’ son was not sent up the bus with a €50 note to pay the fares owing;
(6) Ms Jennifer Dardis denied that she was liable to make any payment for her children;
(7) the driver then got off the bus to fetch an inspector;
(8) the driver did not at any time explode in temper;
(9) the driver did not put the family-party off the bus;
(10) after the driver dis-embarked, the family-party remained on the bus;
(11) the Gardaí were sent for by Bus Éireann;
(12) the garda who attended at the scene got on the bus and asked the family-party to disembark so that matters could discreetly be discussed;
(13) the family-group acceded to this invitation and got off the bus;
(14) the discussions that followed were polite and restrained;
(15) at no time in the course of these discussions was any payment proffered;
(16) due payment not having been made, the family-party could not travel as a complete party and the bus left without them;
(17) the family-party subsequently made its way to Knock by train instead.
II. Ms Curtis’ Claims.
12. Ms Curtis comes now to court claiming that Bus Éireann, its servants or agents are guilty of the wrongs identified below. These wrongs were unsuccessfully sued upon in the Circuit Court and the matter now comes before this Court on appeal.
(a) A failure to inquire quietly and politely of the circumstances.
Having regard to the conclusions of fact reached above, the court considers no such failure to arise.
(b) The making of innuendoes that Ms Curtis had failed or refused to purchase a ticket to travel on the bus.
Having regard to the conclusions of fact reached above, it appears to the court that the focus of the events that transpired was Ms Jennifer Dardis’ refusal to pay for her children. As to the family’s getting off the bus, this was a sensible suggestion by the garda who attended at the scene; he invited the family-party to disembark so that he could get to the bottom of matters discreetly; as the family-party were travelling as a party it was natural that they would disembark together; and they acceded to what they perceived as an invitation. The court does not consider that any innuendo was made at any point that Ms Curtis had failed or refused to purchase a ticket to travel on the bus. Even asking her to produce her free travel pass for checking did not involve any such innuendo; many people are often asked to produce a ticket or bus-pass when travelling on public transport and no-one thinks anything of it.
(c) A failure to take any or any reasonable care for Ms Curtis.
Having regard to the conclusions of fact reached above, there is no basis for this assertion.
(d) A failure to implement a system of surveillance, management or control of their premises and vehicles in order to prevent the type of incident that in fact occurred
This amounts in effect to a contention that Bus Éireann should have a system in place whereby young mothers are refused permission to settle down infant children on a bus before they furnish a bus-fare. The court must admit to some surprise that such an ideal would be contended for. Certainly the court finds no legal failing that such a system does not pertain. If anything, the driver in this case is to be commended for his politeness in allowing a young mother to board a bus and settle a child down, rather than refusing her permission to board until full payment was made, as he was perfectly entitled to do.
(e) Injuring Ms Curtis’ credit, character and reputation, subjecting her to scandal, ridicule and contempt, and causing her to suffer shame, embarrassment, humiliation, mental distress, loss, damage, convenience and expense.
Having regard to the conclusions of fact reached in Part I, it appears to the court that the focus of the events that transpired was Ms Jennifer Dardis’s refusal to pay for her children. Ms Curtis was not the focus of attention. As to the family’s getting off the bus, this was a sensible suggestion by the garda who attended at the scene; he invited the family-party to disembark so that he could get to the bottom of matters discreetly; and they acceded to what they perceived as an invitation.
Bus Éireann contended that, given a single public order offence of which Ms Curtis was convicted in the past, she has little or no reputation that could be sued upon in defamation in any event. This aspect of matters is considered later below.
(f) Wrongfully, and in breach of contract, in breach of representations made and warranties given, Bus Éireann, its servants or agents, failed, refused and/or neglected to comply with the terms and conditions attached to the use of free travel passes, acting in a manner at variance with the representations and statements made regarding the use of free travel passes.
Ms Curtis was entitled to travel on her free travel-pass and, notwithstanding what occurred, could have gone to Athlone (and then Knock) on the bus by herself. She elected not to do so when the rest of the family-party were not travelling with her. But that she elected so to proceed does not yield the conclusion that Bus Éireann is guilty of the above-mentioned wrongs, and as a matter of law they are not.
(g) By reason of the matters aforesaid, defamation, negligence, breach of duty, breach of contract and misrepresentation, as a consequence of which Ms Curtis has suffered various types of injury.
Having regard to all of the various conclusions reached above, there is no basis in fact or law for any of these alleged wrongs.
III. Ms Dardis’ Claims.
13. Ms Dardis comes to court claiming that Bus Éireann, its servants or agents are guilty of the wrongs identified below. These wrongs were unsuccessfully sued upon in the Circuit Court and the matter now comes before this Court on appeal.
(a) A failure to inquire quietly and politely of the circumstances.
Having regard to the conclusions of fact reached above, the court considers no such failure to arise.
(b) The making of innuendoes that Ms Dardis had failed or refused to purchase a ticket to travel on the bus.
Ms Dardis was travelling on a carer’s pass, but, as of 23rd June, 2013, the person for whom she cared had, regrettably, passed away some years previously, and a carer’s pass is only good for free travel when the holder of same is travelling with the person for whom s/he cares. In other words, Ms Dardis failed to purchase a ticket to travel on the bus when she ought to have done so.
(c) A failure to take any or any reasonable care for Ms Dardis.
Having regard to the conclusions of fact reached in Part I, there is no basis for this assertion.
(d) A failure to implement a system of surveillance, management or control of their premises and vehicles in order to prevent the type of incident that in fact occurred.
This amounts in effect to a contention that Bus Éireann should have a system in place whereby young mothers are refused permission to settle down infant children on a bus before they furnish a bus-fare. The court must admit to some surprise that such an ideal would be contended for. Certainly the court finds no legal failing that such a system does not pertain. If anything, the driver in this case is to be commended for his politeness in allowing a young mother to board a bus and settle a child down, rather than refusing her permission to board until full payment was made, as he was perfectly entitled to do.
(e) Injuring Ms Dardis’ credit, character and reputation, subjecting her to scandal, ridicule and contempt, and causing her to suffer shame, embarrassment, humiliation, mental distress, loss, damage, convenience and expense.
As mentioned above, Ms Dardis was travelling improperly on a carer’s pass. She had failed to purchase a ticket to travel on the bus even though she ought to have done so. Even had the driver pointed directly at her and said ‘You have not paid your fare when you ought to have done so’, something the driver never did, he would have been entirely correct in such an assertion.
Bus Éireann contended at the hearing that, given a multiplicity of dishonesty offences of which Ms Dardis was convicted in the past, she has little or no reputation that could be sued upon in defamation in any event. This aspect of matters is considered later below.
(f) Wrongfully, and in breach of contract, in breach of representations made and warranties given, Bus Éireann, its servants or agents, failed, refused and/or neglected to comply with the terms and conditions attached to the use of free travel passes, acting in a manner at variance with the representations and statements made regarding the use of free travel passes.
As mentioned above, Ms Dardis was travelling improperly on a carer’s pass. She had failed to purchase a ticket to travel on the bus even though she ought to have done so. She therefore had no entitlement to travel on the bus.
(g) By reason of the matters aforesaid, defamation, negligence, breach of duty, breach of contract and misrepresentation, as a consequence of which Ms Curtis has suffered various types of injury.
14. Having regard to all of the various conclusions reached above, there is no basis in fact or law for any of the wrongs alleged by Ms Dardis to have been done to her.
IV. The Decision in Watters
15. Under s.6(2) of the Defamation Act 2009, the tort of defamation consists of “the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person).” Section 2 of the Act of 2009 defines a “defamatory statement” as “a statement that tends to injure a person’s reputation in eyes of reasonable members of society”. Bus Éireann queried at the hearing of the within appeal whether either of Ms Curtis or Ms Dardis has much, if any reputation, given Ms Curtis’ conviction for a single public order offence in the past, and Ms Dardis’ conviction for a multiplicity of dishonesty offences in the past. Counsel for each of Ms Curtis and Ms Dardis relied on the decision of the Circuit Court in Watters v. Independent Star Ltd. [2010] IECC 1 in support of the contention that, notwithstanding these convictions, each of Ms Curtis and Ms Dardis enjoys, at the least, a ‘residual reputation’ that can be sued upon in defamation.
16. In Watters, the plaintiff was serving two sentences of imprisonment for certain child pornography offences, these being offences that rightly attract very considerable public opprobrium. He sued for defamation following publication of a newspaper article which alleged that he had been engaged in a “seedy” and “weird” relationship with another prisoner who had attracted a certain notoriety for the offences he had committed. It was claimed that the men had been “alone in the showers” and “that no-one ever caught them doing anything” but noted that it had been “suggested that something might be going on”. The plaintiff claimed that there was a defamatory innuendo that he had been engaged in an “illicit homosexual relationship” with the other prisoner and was not sincere in seeking rehabilitation in respect of his addiction to child pornography.
17. Counsel for the defendant in Watters relied on Australian authority (Rivkin v. Amalgamated Television Services PTY Limited (2001) NSWSC 432) to argue that it is not defamatory in this day and age to say of a person that s/he is engaged in lawful sexual activity with another adult. In the Circuit Court, Matthews J. found that there were distinctive reasons for identifying a defamatory dimension to the allegations of homosexual conduct in that case, viz. (1) the prison-rule breaking aspect of the acts involved, (2) the notorious character of the alleged associate and (3) the hypocritical stance implicitly assigned to a plaintiff who had “sought in particular with…family members who had supported him to be truthful and honest with respect to his relationships with people and his behaviour in prison”.
18. Subtracting elements (1) to (3), it is clear that Matthews J. did not question the general proposition that it is not defamatory to allege that a person engages in lawful sexual activity. And, if the court might express an obiter opinion, rightly so. The enlightened general perception of homosexuality evidenced, inter alia, by the approval of the 34th Amendment of the Constitution, appears to this Court to have the necessary consequence that no defamation can nowadays arise in an allegation that (i) a person engages in some lawful sexual activity, and/or (ii) has a particular sexual orientation, save, in each case, where such allegation involves innuendo, e.g., as to dishonesty. Thus, Reynolds v. Malocco [1999] 2 IR 203, must, it seems to the court, be seen as, at the least, no longer correct in its contrary findings. If language is a living thing, so too are the predominant mores and opinions shared by “reasonable members of society”. Of course, the particular significance of Watters in the context of the within proceedings is in the findings of Matthews J. as to ‘residual reputation’, viz:
“Although he has suffered a substantial loss of reputation the Plaintiff cannot reasonably be said to be in the same category as a convicted prisoner who refuses to accept his guilt, continues to deny all offences and do absolutely nothing but serve a sentence under protest of innocence with no remorse, contrition, acceptance of wrongdoing or any intention to rehabilitate or not re-offend. There is therefore in my view in this Plaintiff a residual ‘reputation’ capable of being damaged by the nature of the allegations suggested in the [impugned] article….He has because of the manner in which he has met the case against him in the Circuit Criminal Court a residue of reputation that is capable of being damaged and fits into a category of prisoner who is different in degree, if not in kind, to those who, in similar circumstances, simply deny all wrongdoing despite their conviction.”
19. The court does not know how Ms Curtis or Ms Dardis met the criminal charges that were successfully laid against them in the past. Neither, however, does the court consider that one or more public order or dishonesty convictions, now of some years’ vintage, of themselves necessarily deprive a person of reputation sufficient to ground an action for defamation at some later stage, albeit that the existence of a criminal record may impact (less so perhaps in the case of a single public order conviction, more so certainly in the case of a multiplicity of dishonesty offences) on the amount of damages that might be awarded if the various elements of defamation are established, and here, of course, they have not been established. For the reasons identified previously above, the court does not consider that any of the incidents that occurred at Busáras on 23rd June, 2013, and of which each of Ms Curtis and Ms Dardis separately makes complaint, involved the publication of a defamatory statement concerning either of them to one or more other persons.
V. Damages Sought by Ms Curtis.
20. Ms Curtis seeks, inter alia, damages for (1) defamation, negligence and breach of duty, (2) breach of contract and/or misrepresentation, (3) wrongful interference with Ms Curtis and breach of her constitutional right to a good name and privacy; (4) loss of reputation in the eyes of right-thinking members of society. Having regard to all of the various conclusions reached above, all of Ms Curtis’ claims for damages are refused.
VI. Damages Sought by Ms Dardis.
21. Ms Dardis seeks, inter alia, damages for (1) defamation, negligence and breach of duty, (2) breach of contract and/or misrepresentation, (3) wrongful interference with Ms Dardis and breach of her constitutional right to a good name and privacy; (4) loss of reputation in the eyes of right-thinking members of society. Having regard to all of the various conclusions reached above, all of Ms Dardis’ claims for damages are refused.
VII. Costs.
22. The court will hear the parties on the issue of costs.
Philpott v Irish Examiner Ltd
[2016] IEHC 62,
JUDGMENT of Mr Justice Max Barrett delivered on 8th February, 2016.
Part 1: Overview
1. The essence of the within application is simply stated: the Irish Examiner newspaper has published certain articles on its website; Mr Philpott wants them removed. He seeks to achieve this by having the court grant interlocutory orders prohibiting the Irish Examiner, its servants or agents, from continuing to publish the impugned articles on-line.
Part 2: A Brief Aside
2. Before proceeding with its judgment proper, the court pauses to address a specific concern that, it is claimed, presents for Mr Philpott at this time. A married man with two young children, he maintains that as a result of the articles that remain on the Irish Examiner website, it is proving difficult for him to get employment. To the extent that this is so, if it is so, it may assist Mr Philpott if the court briefly sets the record straight insofar as it can:
Mr Philpott is the former CEO of Marymount University Hospital and Hospice Limited. During the course of his employment as CEO, he sought to draw attention to what he perceived to be serious shortcomings in the operation of Marymount. Subsequently, there was a parting of the ways between himself and Marymount. This parting resulted in employment-related court proceedings between Mr Philpott and Marymount. However, the parties eventually settled their differences and the Board of Management of Marymount has given Mr Philpott a positive reference and publicly wished him well in his future career. The within application involves an attempt by Mr Philpott to have certain articles that he alleges are defamatory of him removed from the website of the Irish Examiner. Mr Philpott was entitled to bring the proceedings that he has settled. Moreover, while this Court is of the view that it cannot, as a matter of law, grant him the reliefs that he now seeks, he was fully entitled to bring the within application.At this time, there is nothing more to matters than that.
Part 3: The Nature of the Application Now Made
3. The within application is brought pursuant to s.33 of the Defamation Act 2009. That provision allows the court to make an order prohibiting the publication of a defamatory statement. So far as relevant to the within application, it provides:
“33. – (1) The High Court…may upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which application was made if in its opinion –
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order [so no ‘super-injunctions’] provided that such reporting does not include the publication of the statement to which the order relates.
(3) In this section ‘order’ means
(a) an interim order,
(b) an interlocutory order, or
(c) a permanent order.”
4. Notably, the premium placed by our society on freedom of speech is such that our elected lawmakers provide merely that the High Court “may” grant a s.33 order even when the court is of the opinion that an indefensible defamatory statement presents. That the High Court “may” grant such an order, but need not do so, indicates that our elected lawmakers contemplated that there will be instances when a court is of the opinion that an indefensible defamatory statement presents but may nonetheless elect not to bring the hammer of a s.33 order to bear in all the circumstances arising.
5. Notable too is the fact that the High Court need merely be of the opinion that the factors identified in s.33(1) present. In Reynolds v. Malocco [1999] 2 IR 203, Kelly J. indicated the position at common law as regards the granting of injunctions in situations of a type now governed by s.33 was that there should be no doubt but that the words complained of were defamatory. By reducing the test to a matter of judicial opinion, our elected lawmakers, in enacting s.33, appear to have lowered the bar for plaintiffs in this regard. Even so, a court in a liberal democracy such as ours that places a high premium on freedom of speech, may be slow in any event to issue a s.33 order, notwithstanding that the court is of the opinion that an indefensible defamatory statement presents. Indeed the profound importance of free speech – a freedom inextricably linked to the freeness of our nation -is such that it is arguable that a court ought to be slow to do so. One possible situation that occurs to the court in which the s.33 criteria might be satisfied but where, nonetheless, a s.33 order might not issue, would be where a court was possessed of the necessary opinion but not sufficiently confident of that opinion, whether on the facts presenting or otherwise, to wield the hammer of injunctive relief.
6. What does “defamatory” mean for the purposes of s.33? The term is defined in s.2 of the Act of 2009 as meaning “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and ‘defamatory’ shall be construed accordingly”. The term “statement” is also defined in s.2 and includes (a) a statement made orally or in writing, (b) visual images, sounds, gestures and any other method of signifying meaning, (c) a statement that is (i) broadcast on the radio or television, or (ii) published on the internet, and (d) an electronic communication. There is no doubt but that the on-line articles published by the Irish Examiner and which are the focus of the within application either comprise two statements and/or are two publications comprised of multiple statements.
7. Counsel have been unable to identify any previous Irish case-law that examines the precise nature of the test to be applied before a s.33 order will issue in circumstances such as those now presenting and have effectively invited the court to arrive at some formulation of the relevant test, and to determine whether, for example, a Campus Oil or Maha Lingham-style test applies. However, it seems to the court that the tapestry of law woven by the Oireachtas does not invariably or even generally require additional embroidery by the courts. The Act of 2009 posits simply that there are three criteria which must be satisfied before an order can issue under s.33, viz:
In the opinion of the court:
(1) is the statement complained of defamatory?
(2) does the defendant have a defence to the claim of defamation?
(3) is that defence reasonably likely to succeed?
8. The great strength of the common law is that so many judges have said so much; the great weakness of the common law is that so many judges have said so much. Either way, to borrow from Sati, there comes a time for everybody when words and reason become a great weariness. To add more to the plain words of statute, to afford those words a meaning other than what ordinary English requires, seems to this Court to be unnecessary.
9. The court is conscious that Kearns P. in Lowry v. Smith [2012] IEHC 22 did seek to define, in the context of s.34 of the Act of 2009, what was meant by the phrase “no defence to the action that is reasonably likely to succeed” which appears in that section also. However, that was a case dealing with s.34 of the Act and the very different scenario of summary disposal. Our courts are generally especially careful as regards exercising a power of summary jurisdiction because of the inherent potential for unfairness that arises. Consequently Kearns P. (in this Court’s respectful opinion, rightly) sought to pitch the test for summary judgment under s.34 in such a way as to favour defendants as much as possible, and thus reduce, so far as possible, the risk of a summary judgment issuing inappropriately. The same concerns do not present in the context of a s.33 application. The judgment of Kearns P. in Lowry, a case concerned with s.34, is clearly not binding in any way upon the court in the context of an application under s.33. Nor does it appear to this Court to be appropriate to apply, by analogy, the principles identified in Lowry to the very different form of relief established by s.33.
Part 4: A Chronology of Events
10. The court sets out a summary chronology of events below. It then proceeds to consider the substance of the three documents that are central to the within application, namely the judgment of Judge O’Donohoe on 12th June, 2015, and the Irish Examiner articles of 13th June, 2015, and 5th December, 2015. The key events arising are as follows:
06/05/2014. Mr Philpott commences employment as CEO of Marymount University Hospital and Hospice Limited.
02/02/2015. Mr Philpott’s employment with Marymount ceases.
12/06/2015. Judge O’Donohoe of the Circuit Court issues a written judgment determining in effect that certain disclosures made (‘whistleblowing’ done) by Mr Philpott during his tenure as CEO are not ‘protected disclosures’ for the purposes of the Protected Disclosures Act, 2014.
– Prior to that judgment issuing, application was made on behalf of Mr Philpott that Judge O’Donohoe recuse himself. This application was refused.
– Mr Liam Heylin, a reporter with the Irish Examiner seeks to make contact with a solicitor for Marymount. By the time the solicitor returns his call on the same day, Mr Heylin has already written up an article by reference to Judge O’Donohoe’s written judgment. Mr Heylin advises the solicitor that he does not require anything from her. Their conversation ends.
13/06/2015. The Irish Examiner publishes an on-line article entitled “Former CEO loses case against hospice”. The author of the article is identified as Mr Heylin.He was not in attendance at the Circuit Court on the previous day.
16/06/2015. Mr Philpott attempts at 11:29 and 12:32 to e-mail Mr Heylin asking that the Irish Examiner publish a paragraph of text outlining Mr Philpott’s motivation for doing as he did. Both e-mails are sent to the wrong address and never received by Mr Heylin.
19/06/2015. Mr Philpott speaks with and thereafter e-mails Mr John O’Mahoney, a news editor with the Irish Examiner, raising his concerns regarding the article of the 13th.
04/12/2015. Appeal against Circuit Court decision called on for hearing before High Court (Noonan J.). The dispute is settled between the parties and the orders and findings of fact of the Circuit Court are set aside by the High Court. (There was some dispute between the parties at the hearing of the within application as to whether the findings of fact were in fact set aside. The High Court order, as perfected on 9th December last, orders “that this Motion be struck out with no further order and the Court noting that the orders of finding of fact in the Circuit Court be set aside”. The most natural reading of the order, this Court considers, is that the entirety of what happened in the Circuit Court is being struck out on consent, the court noting, in particular, that the embrace of that strike-out extends to such findings of fact as were made in the Circuit Court. The court is buttressed in this finding by certain submissions made to it by Mr Harty, SC, who appeared for Mr Philpott at the within application and also represented him at the High Court proceedings on 4th December last).
05/12/2015. Irish Examiner publishes an on-line article entitled “Ex-Marymount Hospice executive’s legal case resolved”. The author of the article is identified as Mr Heylin.
07/12/2015. Mason Hayes and Curran, the then solicitors for Mr Philpott, issue a letter to the Irish Examiner claiming the article of the 5th is defamatory, skewed, not fair and accurate, malicious and unprivileged. The letter, inter alia, seeks the removal of the articles from the internet.
10/12/2015. Ronan Daly Jermyn, solicitors for the Irish Examiner, issue a letter to Mason Hayes and Curran disputing that the articles are defamatory and declining to remove them from the internet.
14/01/2016. Successful ex parte application made to the Master of the High Court seeking leave to issue notice of motion seeking, inter alia:
“1.An interlocutory order prohibiting the [Irish Examiner]…its servants or agents from any further republication of an article on its on-line newspaper dated the 13th June 2015 titled ‘Former CEO loses case against hospice’
2. An interlocutory order prohibiting the [Irish Examiner] its servants or agents from any further republication of an article on its on-line newspaper dated the 5th December 2015 titled ‘Ex-Marymount Hospice Executive’s Legal Case Resolved’…”.
05/02/2016. Application for above ordersis heard by the High Court (Barrett J.).
Part 5: The Judgment of Judge O’Donohoe
11. Judge O’Donohoe’s judgment of 12th June last is divided into four parts. The first part (headed “Facts”) briefly outlines Mr Philpott’s employment history and the essence of the dispute arising. The second part (headed “The Law”) outlines the content of applicable sections of the Protected Disclosures Act, 2014.The third part (headed “Analysis”) considers the various allegations made by Mr Philpott as ‘whistleblower’.Judge O’Donohoe rejects the allegation that there was an improper use by Marymount of charitable funds that were given in good faith; rejects the suggestion that there are significant health and safety issues with the Marymount building, describing it as “a state of the art facility in a wonderful peaceful setting”; and rejects various contentions concerning the mismanagement of financial resources. Finally, in part 4 of his judgment (headed “Decision”), despite finding on all grounds against Mr Philpott, Judge O’Donohoe states that “[T]he Court accepts without reservation the sincerity of the plaintiff[i.e. Mr Philpott]”, an observation that was referenced in the subsequent Irish Examiner article.
Part 6: The First Irish Examiner Article
A. The text of the article
12. It is necessary to quote this article in full. The square-bracketed numbers that appear in the quoted text are cross-references to the court’s numbered notes below, which notes in turn refer to and consider certain contentions made for Mr Philpott at the hearing of the within application. The article reads as follows:
“Former CEO loses case against hospice
Saturday, June 13, 2015
by Liam Heylin
The former chief executive officer of Marymount Hospice in Cork who was dismissed from his post in February after seven months for ‘significant interpersonal difficulties’ between him and other staff members[1]failed in his application for a court injunction against the hospice yesterday.
Dan Philpott was appointed as CEO of Marymount University Hospital and Hospice Ltd in May 2014 and dismissed in February of this year and the reason given for the termination of his contract was “significant interpersonal difficulties between the applicant (Mr Philpott) and other members of staff, in particular the executive team”.[2]
Judge James O’Donohoe said in his judgment at Cork Circuit Court yesterday on Mr Philpott’s application for injunctive relief against Marymount that it was based on the applicant’s claim that he had made allegations against the employer.
The judge said that in legal terms an employee was outside the protection of the Unfair Dismissals Act if his contract was terminated before 12 months had passed but he said that if the allegations of wrongdoing made by the employee against the employer, referred to as ‘protected disclosures’, were accepted by the court then the employee could get the protection of the Act.
Judge O’Donohoe ruled against Mr Philpott on these key allegations.
“This court has only to satisfy itself that the beliefs and disclosures were reasonable and although the court accepts without reservation the sincerity of the plaintiff, objectively on the facts, in the court’s view, he had not satisfied that test. Accordingly, the court refuses interim relief.”
Firstly, Mr Philpott alleged that charity funding was being used for needs other than palliative care and was being used to fund administration, portion of salaries, expenses of board members and other staff and that this was an improper use of funds given in good faith.
“The court rejects this assertion out of hand. It is patently clear that the Marymount Hospice is a registered charity for a considerable length of time and any further money spent from donors is for the good of the community and is fully compliant. Furthermore, there have been no complaints made to any authority,” Judge O’Donohoe said.[3]
He also said that the assertion of a lack of transparency on fundraising and spending was not borne out by the evidence from the Marymount witnesses.
Secondly, the former CEO complained of a possible Legionnaire’s contamination of water and the evacuation of patients from a ward in 2014.
This was challenged by Marymount witnesses as alarmist and completely overstated for what they described as a water leak.[4]The judge accepted the hospice evidence on this issue.
Judge O’Donohoe found against the applicant’s criticism of the building noting that the building passed two Hiqa registrations and was, according to the judge, ‘a state-of-the-art facility in a wonderful peaceful setting’.
The third issue raised by Mr Philpott was alleged mismanagement of financial resources at the hospice.
Judge O’Donohoe noted in his judgment: ‘He (Mr Philpott) cautions against an over-reliance on charity funding as a working capital source and labels the executive committee as disengaged and that the hospice financial control procedures are ad hoc and an inadequate budget planning approach. Again there was no financial information tendered to support these contentions.’
The judge acceded to an application by Lucy Walsh BL representing Marymount for an award of legal costs in the three-day action in their favour. He refused an application by David Kent BL to put a stay on the order for costs.
* Mr Philpott is appealing the court decision and is also seeking a judicial review.[5]”
13. Re. [1] and [2].The introductory line to the Irish Examiner article – the line that, in effect, lures the reader into reading the balance of the article – states: “The former chief executive officer of Marymount Hospice in Cork…was dismissed from his post in February after seven months for ‘significant interpersonal difficulties’ between him and other staff members.” Counsel for Mr Philpott noted at the hearing of the within application that the Irish Examiner article commences by stating as a fact what Judge O’Donohoe indicates in his judgment is merely an assertion by Marymount. Per Judge O’Donohoe, at para. 1 of his judgment: “The Respondent [Marymount] asserts that the Applicant [Mr Philpott]was dismissed by reason of significant interpersonal difficulties between the Applicant and other members of staff”. Notably, however, the next succeeding line to that just quoted from the Irish Examiner article correctly states that: “Dan Philpott was…dismissed in February of this year and the reason given for the termination of his contract was “significant interpersonal difficulties between the applicant (Mr Philpott) and other members of staff, in particular the executive team” ”.This was, at least, the reason asserted in court.
14. To the extent that the Irish Examinerarticle contains an inaccuracy, the court would simply note that sometimes the best and nicest of people do not get on. This is a common feature of life. That such a difficulty was represented by the Irish Examiner as having existed in the case of Mr Philpott, instead of having merely been asserted to exist, does not seem to this Court, in its opinion, to involve a statement that would or does injure Mr Philpott’s reputation in the eyes of reasonable members of society. Indeed, this Court would hazard that reasonable members of society would be only too aware that (a) there are few managers who are universally beloved by all of the staff in their charge, and (b) if a manager enjoys a completely un-fractious relationship with all other staff, that may well point to that manager being a weak leader who consistently puts personal popularity ahead of organizational efficiency.
15. Re. [3].As indicated above, the Irish Examiner article states:
“Firstly, Mr Philpott alleged that charity funding was being used for needs other than palliative care and was being used to fund administration, portion of salaries, expenses of board members and other staff and that this was an improper use of funds given in good faith.
“The court rejects this assertion out of hand. It is patently clear that the Marymount Hospice is a registered charity for a considerable length of time and any further money spent from donors is for the good of the community and is fully compliant. Furthermore, there have been no complaints made to any authority,” Judge O’Donohoe said.”
16. It was contended by counsel for Mr Philpott at the hearing of the within application that, in fact, the assertion rejected by Judge O’Donohoe was an assertion that the diversion of charitable donations represented an improper use of funds given in good faith. What Judge O’Donohoe stated in his judgment is as follows:
“1. Charity funding being used for needs other than Palliative Care.
[The allegation is that the charity funding]…is being used as a working capital fund, to fund administration, portion of salaries, expenses of board members, executives and employees etc. This diversion of charitable donations represents an improper use of funds given in good faith. This court rejects this assertion out of hand on the evidence as such expenditure is not contrary to the provisions of the Charities legislation 2009 and updated provisions which came into force in 2014. It is patently clear that the Marymount Hospice is a registered Charity for a considerable length of time and any money spent from donors is for the good of the community and is fully compliant. Furthermore there have been no complaints made in this regard to any authority.”
17. The court struggles to see that there is much divergence of real substance between the text of the Irish Examiner and the above-quoted portion of Judge O’Donohoe’s judgment, certainly not to the extent as to convert the text of the Irish Examiner article into a statement that, in the Court’s opinion, would tend to injure Mr Philpott’s reputation in the eyes of reasonable members of society.
18. Re. [4].The Irish Examiner article states:
“[T]he former CEO complained of a possible Legionnaire’s contamination of water and the evacuation of patients from a ward in 2014.
This was challenged by Marymount witnesses as alarmist and completely overstated for what they described as a water leak.”
19. It was contended by counsel for Mr Philpott at the hearing of the within application that it was the usage of the term ‘evacuation’ that was found to be alarmist, not the possibility of contamination. What Judge O’Donohoe has to state in this regard is as follows:
“2.Significant issues with the building which posed and continued to pose critical risk to the health and safety of patients, staff and public.
[Mr Philpott’s]…assertions in this regard refer inter alia to possible Legionnaires contamination due to failure to monitor water temperatures and the necessity to install contingency hot water tanks and other measures to offset a potential explosion risk adjacent to the busy palliative care wards. He refers in particular to an incident on September 14th 2014 which resulted in critically ill patients having to be evacuated. This was entirely refuted in cross examination as completely overstated as the occurrence involved a few patients being transferred to a nearby ward for a short time until the situation came under control and was not anything as grave as was portrayed by the Applicant. This court was of the view that the use of the term evacuation in this context was alarmist and not reasonable terminology to describe this water leak.”
20. Mr Philpott did make ‘complaint’ as regards the contamination of water and the evacuation of patients. It is true that the word “alarmist” appears, at least from the text of the judgment, to have been used by the judge only, not by the witnesses, though it is difficult to see what substantive significance any error in this regard is seen to present if the facts as posited by Mr Philpott in his assertions were “entirely refuted in cross-examination”. Again, the court sees nothing in any of this that, in its opinion, constitutes a statement that would tend to injure Mr Philpott’s reputation in the eyes of reasonable members of society. That he would make certain assertions based on an understanding of the facts that was later refuted by others, is an everyday occurrence: honest people often see things one way, even though the truth of matters is later found to lie in another direction. Such is life.
21. Re. [5].The asterisked text “* Mr Philpott is appealing the court decision and is also seeking a judicial review” is the sole amendment that has been made to the article since it was published and appears to have been added sometime after the interaction between Mr Philpott and the Irish Examiner on 19th June.
B. Key Learnings
22. The above dissection of the Irish Examiner article represents a highly unnatural manner of reading. What are the key learnings that someone viewing the above-mentioned article would likely glean? First, that there was an employment-related dispute between Mr Philpott and his onetime employers. Second, that Mr Philpott had been dismissed, ostensibly because of some sort of difficulties between him and other staff. Third, that Mr Philpott had made various allegations about how Marymount was run – and, perhaps implicitly, that this might have been the real reason for his dismissal. Fourth, that a Circuit Court judge had gone through Mr Philpott’s allegations in some detail and did not find them credible, though he did not doubt that they were sincerely made. In short, the reader would have garnered the truth of matters, as this Court did on its first reading of the article. Anyone who elected to run a fine tooth-comb over every element of the article would have ended up with the same understanding.
Part 7: The Second Irish Examiner Article
A. The text of the article
23. It is necessary to quote the second Irish Examiner article in full:
“Ex-Marymount Hospice executive’s legal case resolved
Saturday, December 05, 2015
Liam Heylin
Legal proceedings between the former chief executive officer of Marymount Hospice in Cork and the hospice board were resolved amicably yesterday at the High Court sitting in Cork.
The case which arose out of proceedings at Cork Circuit Court earlier this year was listed for hearing before Mr Justice Seamus Noonan yesterday.
However, the parties sought time to discuss the issues outside the court and returned shortly before lunchtime to tell Mr Justice Noonan that those discussions had borne fruit.
Mark Harty, counsel for the plaintiff, Dan Philpott who was formerly CEO of Marymount University Hospital and Hospice Ltd, thanked the judge for allowing the parties time and said that thankfully it had borne fruit.
‘By consent the orders of the Circuit Court hearings are set aside,’ Mr Harty said.
‘Thereafter all matters have been resolved. The board of management of Marymount wishes him well in his future career.
Mr Justice Noonan congratulated barristers and solicitors on both sides on resolving matters in this fashion.
‘It is not an easy case to come to grips with. I am glad the parties have been able to resolve their differences,’ the judge said.
In June, this case was dealt with at Cork Circuit Court where Mr Philpott had failed in injunctive proceedings against Marymount.
Mr Philpott was appointed as CEO of Marymount University Hospital and Hospice Ltd in May 2014 and dismissed in February of this year and the reason given for the termination of his contract was ‘significant interpersonal difficulties between the applicant [Mr Philpott] and other members of staff, in particular the executive team.’
Judge James O’Donohoe said in his judgment at Cork Circuit Court in June on Mr Philpott’s application for injunctive relief against Marymount – a judgement that was in effect set aside by mutual agreement of the parties yesterday – that it was based on the applicant’s claim that he had made allegations of wrongdoing against the employer.
Judge O’Donohoe ruled against Mr Philpott on these key allegations.
‘This court has only to satisfy itself that the beliefs and disclosures were reasonable and although the court accepts without reservation the sincerity of the plaintiff, objectively on the facts, in the court’s view, he has not satisfied that test,’ said Judge O’Donohoe. ‘Accordingly the court refuses interim relief.’
In the June case, Mr Philpott alleged that charity funding was being used for needs other than palliative care and was being used to fund administration, portion of salaries, expenses of board members and other staff and that this was an improper use of funds given in good faith.
‘The court rejects this assertion out of hand,’ Judge O’Donohoe said. ‘It is patently clear that the Marymount Hospice is a registered charity for a considerable length of time and any further money spent from donors is for the good of the community and is fully compliant.
‘Furthermore, there have been no complaints made to any authority.’”
24. The court must admit to being somewhat mystified by Mr Philpott’s concerns regarding this article. The whole thrust of the article is that peace has broken out between the parties, that all has been resolved, that Marymount wishes Mr Philpott well, that a line has been drawn under past events and that everybody is now moving on. It seems thata good day’s work was done on the 4ththat ended with an amicable resolution of matters to the satisfaction of everyone involved.
25. Counsel for Mr Philpott argued at the hearing of the within application that the article does not make expressly clear that all findings of fact in the Circuit Court had been set aside. It does not, but that does not, in this Court’s opinion, convert the article or any part of it into a statement that tends to injure Mr Philpott’s reputation in the eyes of reasonable members of society. If anything, it suggests Mr Philpott to be a practically-minded gentleman who is capable of finding an amicable means of resolving a difficult situation. That, this Court would suggest, is precisely the type of skill that one would expect to find in a competent manager.
26. Mr Philpott also complains that the text from “In June…” to the end of the article is a recitation of what had gone before even though Judge Donohoe’s findings of fact had been set aside. The court sees nothing in this text but an abridged, condensed or summarised account of the trial and appellate proceedings. That this is what the Irish Examiner intended to, and in this Court’s view, did achieve is clear from the affidavit evidence of the author of the articles, Mr Heylin, who avers, inter alia, as follows:
“With respect to the second article, it was clear to any reader of such article that the proceedings had resolved amicably and that the Circuit Court orders had been set aside. It would have been an incomplete article if the reader was not then informed about what precise Circuit Court Orders had been made or what in fact the Circuit Court case was about…”.
Part 8: Some Applicable Law
27. Counsel for the respective parties have, between them, brought the court on something of a ‘whistle-stop’ tour of the law applicable to the within application, not least, though not only, by opening to the court various helpful extracts from the recentl earned treatise by Dr Cox and Mr McCullough, SC, Defamation Law and Practice (2014). The key points arising from this ‘tour de loi’ can be summarised as follows:
A. Existence of defamatory statement
(1) At common law, for injunctive relief to be granted, the court had to be satisfied that the material complained of was unarguably defamatory.(Mercury Engineering and Others v. McCool Controls and Engineering Ltd and Others [2011] IEHC 425; Cogley v. RTÉ [2005] IEHC 180). If anything, this Court would note, the position appears even stronger under s.33. Under that provision, the court must be of the opinion that an impugned statement “is defamatory”, not that it is arguably or even unarguably so, but that, in the court’s opinion, it “is” so. This is a high threshold for a plaintiff to satisfy. Indeed it is so high that the court would suggest that (a) the very height of that threshold, coupled with (b) the present cost of coming represented to court, may yet have the result that for many, if not most, people,(i) the financial risk involved in seeking s.33 relief, and (ii) the fact that the court need not issue a s.33 order even where it is of the opinion that an impugned statement “is defamatory”, will colour the initial attractiveness that such a line of action might be perceived to entail, ensuring perhaps that, more often than not, applications will be brought only (I) by the very rich and/or (II) those who have been so demonstrably and disgracefully defamed that the justice of their case cries out for injunctive relief.
B. Burden and nature of proof regarding defamatory statement
(2) At common law, the burden of proving the defamatory nature of the material complained of rested on the plaintiff. That position has not expressly been displaced by statute and it would seem thoroughly illogical were some other arrangement to apply. How could it possibly make sense that a party would come to court complaining that a statement “is defamatory” – a most powerful assertion to make – and seek the hammer of injunctive relief, but not be subject to the burden of proving matters to the extent that the High Court comes to be of the opinion that the assertion so made is correct? Notably, it was accepted for Mr Philpott at the hearing of the within application that the burden of proof in this regard fell to him to discharge.
(3) At common law, the plaintiff had to prove not merely that there was a serious question to be tried but that her/his case is absolutely clear. (See, for example, Cogley, op. cit.). A similar but not identical position appears now to present under s.33 of the Act of 2009. As noted above, under s.33 the court must be of the opinion that an impugned statement “is defamatory”. This is a high threshold for a plaintiff to satisfy (and, again, even when it is satisfied, an order need not issue under s.33).
(4) The jurisdiction to make a s.33-type order involves a jurisdiction of a delicate nature and should only be exercised in the clearest cases (Sinclair v. Gogarty [1937] I.R. 377). Obviously the decision in Sinclair long preceded the Act of 2009. However, a constant societal and legal standard, in the near-80 years since, has been our national commitment, as a liberal democracy, to free expression, free speech, and a free press. This constancy has the result that the principle identified in Sinclair falls to be applied with the same rigour and vigour today, as in yester-year.
C. No defence reasonably likely to succeed
(5) When it comes to determining that a defendant has no defence that is reasonably likely to succeed, courts should be careful not to intrude upon a factual determination that a jury might later make at trial. (Cox and McCullough, para.12-26). This carefulness would appear to have as its natural corollary that the benefit of any doubt as to the potential for success of a defence ought generally to be resolved in favour of the defendant.
D. Burden of proving defence
(6) The burden of proving the existence of a defence that is reasonably likely to succeed rests with the defendant. This was the position at common law (see, for example, the judgment of Kelly J. in Reynolds, op. cit.) and, perhaps even more significantly, it is consistent with the general and still-extant rule that once publication of defamatory material is established, the law presumes a plaintiff’s good name and the falsity of the publication, with it being for the defendant to prove any defences pleaded.
E. Absence of presumption
(7) A question arises whether certain presumptions extant at common law in the context of interlocutory injunctive relief also apply under s.33, e.g., presumptions as to (i) the truth of facts (if honest opinion is pleaded), (ii) the presence of the elements of qualified privilege (if qualified privilege is pleaded and no malice presents), or (iii) the possibility of nominal damages being a bar to relief under s.33. Although s.33 does not expressly suggest that these presumptions have been displaced, this Court must admit that it would be hesitant to graft onto the unvarnished wording of a statutory provision which creates a new basis for relief, the application of difficult-to-overcome presumptions which our elected lawmakers could so easily have included, expressly or by reference, in the Act of 2009. Indeed, the fact that they did not do so may represent a re-drawing of the line as regards the protection of the good name of citizens. Fortunately, this is not an issue that needs to be resolved in the context of the within application and thus the court’s observations in this regard are entirely obiter. Suffice it to note that even if these presumptions do not apply, a plaintiff seeking relief under s.33 is still faced with a difficult up-hill task: s/he must come to court and lead the court to form the opinion that an impugned statement “is defamatory”, not that it is arguably or even unarguably so, but that it “is defamatory” – and even when that high threshold is met, a s.33 order need not issue.
F. Internet publications
(8) There is nothing in the technology-neutral wording of s.33 to suggest that internet publications fall to be treated differently from other publications when it comes to the granting of a s.33 order. To the extent that the decision in Tansey v. Gill[2012] IEHC 42 suggests that the opposite may apply, this Court’s instinctive preference is to look to the plain wording of statute as the key determinant of matters -and there is nothing in s.33 to suggest that the opposite applies. As a society, we were well into the Internet Age when the Act of 2009 was enacted. If our elected lawmakers had wanted to make some differentiation in this regard, they would surely have done so, and they did not. That said, s.33 remains ultimately an equitable discretion and this Court does not mean in the foregoing to tie the hands of any later court coming to an application of the type now presenting.
Part 9: The Reporting of Court Proceedings
A. Overview
28. Court reports are not just of interest to the public; they meet a great public interest. In a liberal democracy that prizes individual freedoms, all branches of government are rightly subject to the scrutiny of an ever-watchful public. Reporters perform an essential role in ensuring that members of the public learn of what is being done in their courts and why. In this regard, Burke did not exaggerate when he reputedly observed in the House of Commons that there were three estates in Parliament but that in the Reporters’ Gallery sat a ‘Fourth Estate’ that was more important than all. It is by and through the media that a critical eye is so often brought to the work of all branches, offices and officers of government. This is so important a task that – except insofar as is necessary to ensure that the right of every citizen to her or his good name is protected and capable of vindication – the media must go relatively unconstrained in their efforts. Our individual freedoms are more fully assured in the collective freedom of journalists to discharge the role so eloquently identified for them by the late President Kennedy, in a speech to the American Newspaper Publishers Association back in 1961, being “not primarily to amuse and entertain, not to emphasise the trivial and the sentimental, not to simply ‘give the public what it wants’ – but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mould, educate and sometimes even anger public opinion”, and, it might be added, not just to report, but to comment. A court must bring a consciousness of this great public interest to the adjudication of private proceedings such as the application now presenting.
B. Privilege afforded Court Reports
29. Privilege is either absolute or qualified. When it is absolute, a defendant is entirely protected in respect of any statements made, regardless, e.g., of any malice presenting. When privilege is qualified, a defendant is protected, except for statements made maliciously. So great is the protection given by absolute privilege, that the occasions which give rise to it are greatly limited in number. Section 17 of the Act of 2009 identifies various occurrences to which absolute privilege attaches. Section 17(1) establishes the overriding principle that any defence of absolute privilege recognised by the Irish courts before commencement of the Act of 2009 continue to be privileged thereafter. But it is s.17(2) of the Act that is of the greatest interest in the context of the within proceedings. It provides as follows:
“Subject to [a statutory provision that is not of relevance to the within application]…and without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…
(i) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court –
(i) established by law in the State…”.
30. Clearly, the Circuit Court is a court established by law in the State.
31. The effect of s.17 is that the statutory privilege contained in s.17(2) is additional to the privilege which historically attached to fair and accurate reports of judicial proceedings at common law. A case could conceivably present in which the differences between the ambit of the statutory privilege under s.17(2) and the still-continuing privilege that exists at common law would be of relevance. However, in the within application, that distinction does not arise to be considered. Matters can be decided by reference to s.17(2). The public/in camera dichotomy that presents ins.17(2) is also not of relevance to the within proceedings.
32. So, are the impugned Irish Examiner articles capable of attracting absolute privilege? Or to put matters otherwise, do they appear to this Court, in its opinion, to be court reports that are “fair and accurate”?
C. “Fair and Accurate”
33. The privilege attaching to court reports under s.17(2) of the Act of 2009 (and the related privilege arising at common law) only applies to court reports that are “fair and accurate”. What exactly does this phrase embrace? The court has been referred to various statements of principle in the renowned English textbook, Gatley on Libel and Slander (12th edition), pp. 310-320, and considers the principles identified below to be good law in this jurisdiction also:
(1) It is not necessary that a court report should be verbatim.
(2) An abridged or condensed court report will be privileged, provided it gives a correct and just impression of what took place in court.
(3) It is sufficient to publish a fair, summarised account of court proceedings.
(4) If the whole of a court report is a substantially accurate account of what took place, the fact that there are slight inaccuracies or omissions is immaterial. Fair and reasonable latitude must be given by the courts; trifling slips do not deprive a court report of privilege.
(5) A report in a daily newspaper is not to be judged by the same strict standard of accuracy as a report coming from the hand of a trained lawyer.
(6) Where an inaccuracy is of a substantial kind, a report is not privileged.
(7) An abridged or condensed court report must be fair and not garbled so as to produce a misrepresentation.
(8) A court report must not by deliberate suppression of some portion of the evidence give an entirely false and unjust impression to the prejudice of one of the parties involved.
(9) It is not enough to report part of the proceedings correctly, if by leaving out other parts, a false impression is thereby created.
(10) Reports assuming a verdict are not privileged.
(11) A report which accurately sets out the summing-up or judgment of a judge is privileged, even though the summing-up or judgment may contain statements that are defamatory.
(12) Gatley suggests that in a protracted trial a newspaper could be liable if it reported, e.g., Days 1-3 of a trial but failed to report what happened on the conclusion. This point does not fall to be decided in the within proceedings. However, this Court would be of the view that Irish law may well depart from what Gatley states in this regard. Why, for example, should a newspaper prove ultimately liable for publishing what, in and of themselves, are separate, fair and accurate reports? And why should the law dictate to editors what the contents of tomorrow’s newspapers or news programmes should be?
(13) A more liberal view of the immunity of reporters is taken now than in former times. Common-sense is allowed a larger share in determining any liability that may arise on their part.
34. There was some criticism voiced at the hearing of the within application that certain aspects of the proceedings before Judge O’Donohoe (specifically, the application that he recuse himself) were not witnessed, and hence not reported, by the Irish Examiner or its agents. To the extent that it is suggested that a court reporter needs to be present for any, let alone every, aspect of court proceedings on which s/he reports, this proposition is entirely rejected by this Court. Provided the above principles are observed, it is perfectly possible, reasonable and lawful for a court reporter to rely solely on the written judgment of a court as the basis for formulating a court report that later appears in print, ‘on-air’ or on-line, and for that report to be “fair and accurate”.
35. The court notes in passing that it considers that a court report about appellate proceedings, even settled appellate proceedings that are the subject of a court order regarding or pursuant to the settlement, does not cease to be a court report because it refers to matters that were addressed before the court of trial. Such a form of court report falls rightly to be treated as a court report that comprises an abridged, condensed or summarised account of the relevant trial and appellate proceedings.
36. The court does not consider that either of the impugned articles that are the subject of the within application offend against or, as appropriate, ought not to benefit from, the liberality and latitude that is afforded court reporters and court reports pursuant to, and consistent with, the above-identified principles.
Part 10: Publication and re-publication on the Internet
34. An issue that was suggested to arise in the within application was the date on which the Irish Examiner’s two on-line news articles are to be treated as having been published. In this regard, the court understands the issue to be that (1) the articles were published first on the internet on the respective dates shown on the articles, (2) they have been accessible ever since, and (3) each time one or both of the articles is now communicated to a third party this, it is claimed, amounts to a new publication giving rise to a fresh cause of action.
37. This aspect of matters, it seems to the court, is addressed by the technology-neutral provisions of s.11 of the Act of 2009, which is concerned with what it refers to as instances of “multiple publication”. Section 11(3) of the Act defines a “multiple publication” as “publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement is made) whether contemporaneously or not.” When it comes to electronic publications, could there, at this time, be any better example of a “multiple publication” than the same on-line newspaper article being accessed over time by two or more people other than the person in respect of whom a statement in that internet article refers? Probably not. So what does s.11 state in respect of such a “multiple publication”? Section 11(1) states that “Subject to subsection (2), a person has one cause of action only in respect of a multiple publication.” Section 11(2) empowers the court to grant leave to a person to bring more than one defamation action in respect of a multiple publication in circumstances “where it [the court] considers that the interests of justice so require.” So s.11(1) sets the general position, and s.11(2) allows for what seem likely to be exceptional instances.
38. What is not expressly answered in the foregoing is what date is to be treated as the date of publication of a multiple publication that is accessed on-line on different dates over time. It seems to this Court that, at least in the context of on-line publications, and despite such longstanding decisions as Duke of Brunswick v. Harmer [1849] 14 Q.B. 185 – a decision which, the court would hazard, with some confidence, was not made with an eye to the Internet Age – it must, logically, be the case that it is the date of first publication that is to be treated as the date of publication of a multiple publication that is accessed on-line at different times and/or on different dates. Were this not so, on-line news providers would be under a never-ending duty at all hours of every day to re-visit constantly each and all of their archived articles and reports and repeatedly up-date them so that those archived articles and reports reflected any changes of relevance that might have occurred between the moment the articles initially went up on-line and each time those articles might be freshly accessed thereafter. Such an end would be a complete nonsense, commercially, practically and legally. Logically, sensibly, and properly, the only way to read s.11 when it comes to on-line publications – a type of publication that had long existed by 2009 and which our elected lawmakers can be presumed to have had within their contemplation when enacting that Act -is that (if only to avoid the nonsense just identified) it is the date of first publication that is to be treated as the date of publication of a multiple publication that is accessed on-line at different times and/or on different dates over time. The court proceeds on this basis when approaching the three-pronged test that arises under s.33. And it sees some support for its conclusion as to the centrality of the date of first publication in the insertion into the Statute of Limitations 1957, by s.38 of the Act of 2009, of a new s.11(3B) whereby the date of accrual for a defamation action in respect of an on-line publication is “the date on which it is first capable of being viewed or listened to through that medium.” Any potential for unfairness that the approach favoured by this Court may entail seems to it, and appears also to have seemed to our elected lawmakers, to be met by the power accorded the court by s.11(2) of the Act of 2009.
Part 11: Conclusions
39. The court proceeds now to apply the three-pronged test arising under s.33 of the Act of 2009.
40. Q. In the opinion of the court, are the statements complained of defamatory?*
* As noted above, s.2 of the Act of 2009 defines the phrase “defamatory statement” as meaning “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and ‘defamatory’ shall be construed accordingly.”
A. In the opinion of the court: (1) (i) neither of the two articles published by the Irish Examiner, however viewed, and (ii) no statement contained in either of those two articles, contains or constitutes a statement that tends to injure Mr Philpott’s reputation in the eyes of reasonable members of society; and (2) none of the statements complained of is therefore defamatory.
41. Q. In the opinion of the court, does the defendant have a defence to the claim of defamation?
A. Yes. For the reasons stated above, the court is of the opinion that the defence of absolute privilege is open to the Irish Examiner in respect of both impugned articles.
42. Q. In the opinion of the court, is that defence reasonably likely to succeed?
A. Yes. For the reasons stated above the court is of the opinion that the defence of absolute privilege is likely to succeed in respect of each of the impugned articles and any statements therein contained.
43. In light of the above conclusions, the court is coerced by law into declining all of the reliefs sought by Mr Philpott in the within application.
Muwema v Facebook Ireland Ltd
[2016] IEHC 519
JUDGMENT of Mr. Justice Binchy delivered on the 23rd day of August, 2016.
1. The plaintiff in these proceedings claims damages for defamation of character which he claims he has suffered by reason of articles posted on Facebook by a third party. Prior to issuing these proceedings, the plaintiff requested the defendant to take down the articles from its site, but it declined to do so. The plaintiff subsequently issued these proceedings, and by this application he seeks a number of interlocutory orders as follows:
(i) a permanent order pursuant to section 33 of the Defamation Act 2009, (hereafter “the Act of 2009”) prohibiting the publication or the further publication of the Facebook page of one Tom Voltaire Okwalinga (hereafter “TVO”), hosted by the defendant and a number of articles posted by TVO (hereafter the “Reported Content”), which I will shortly discuss.
(ii) In the alternative, an Order pursuant to section 33 of the Act of 2009 prohibiting the publication or further publication of a number of posts set out in the schedule to the plenary summons and appearing on the Facebook page of TVO.
(iii) An order that the defendant or any person having notice of the order cease and desist in the further publication of the impugned articles.
(iv) An order directing the defendant to provide the plaintiff with any details which it holds relating to the identities and location of the person or persons who operate the Tom Voltaire Okwalinga Facebook page or the individual posters thereon i.e. “Norwich Pharmacal “ order.
2. The plaintiff is a Ugandan lawyer and a partner in the Ugandan firm of Muwema & Co., Advocates and Solicitors. In his affidavit grounding the application herein, he avers that his firm is a “high profile and prestigious” law firm, which over the years has been involved in a series of landmark cases in Uganda. He says his firm specialises in the areas of Intellectual Property and Anti-Counterfeit Law
3. The plaintiff takes issue with what he describes in his grounding affidavit as three “highly offensive and defamatory publications” that have been posted on the defendant’s site, by a person identified only by the pseudonym TVO.
4. The defendant is the operator of the “Facebook” social media site for users residing outside of the United States and Canada. The offending articles were posted between 17th March 2016 – 24th March 2016.
5. By way of letter dated 22nd March 2016, the plaintiff wrote to the defendant seeking the removal of the Reported Content from its site and also sought disclosure of the IP address of TVO. Following this letter, correspondence was exchanged between the parties. On 31st March 2016 White & Case LLP, representing the defendant, wrote to the plaintiff stating that the defendant was unable to comply with the plaintiff’s request to remove the Reported Content stating :
“To the extent you claim that any content on the Facebook service is defamatory in nature, your complaint should be addressed to the user who created and posted the content, not Facebook. Moreover, Facebook is not in a position to evaluate the truth or falsity of such content and will not remove or block it absent proper service of a valid court order identifying the specific content deemed to be defamatory.”
6. The plaintiff subsequently engaged Messrs. Lavelle, Solicitors, who on 19th April 2016 wrote to the defendants again calling on the defendant to remove the offending content. Messrs. Lavelle stated that the defendant was violating its own Statement of Rights and Responsibilities and highlighted that the plaintiff continued to suffer loss and damage. Following a further letter dated 4th May 2016, the defendant sent an email to the plaintiff’s solicitors on 9th May 2016, stating that the Reported Content was no longer accessible in Uganda. However, it subsequently transpired that this was not the case.
The Reported Content : Plaintiff’s Grounding Affidavit
7. In his grounding affidavit of 23rd May 2016, the plaintiff avers that the first publication complained of was posted on the TVO page on 17th March, 2016 and bore the title “Betrayal in the City.” The second article to appear was entitled “Scandal Lawyer Fred Muwema, is now guarded by Special Forces Command Operatives who follow him everywhere and are dressed in civilian clothes, and armed with revolvers” and appeared on the TVO page on 19th March 2016. A third article entitled “Muwema is a joke of a lawyer” was posted on the TVO page on 24th March 2016. The above posts were updated and edited on 18th March, 22nd March and 24th March 2016. The plaintiff argues that the articles are false, scurrilous and defamatory of him and submits that the articles assert that:
1. That the plaintiff has accepted bribes in the amount of US$ 260,000;
2. That the plaintiff staged a break in into the premises of his own law firm in order to jeopardise a presidential election and petition;
3. That the plaintiff is now constantly guarded by armed forces
8. The plaintiff avers that since these articles were published on the Facebook page of TVO, there have been an indeterminate number of subsequent comments and posts, which have “condemned, ridiculed and threatened both myself and my firm as well as endangering my safety, reputation and credit.”
9. The plaintiff in his grounding affidavit highlights the gravity of the TVO allegations, particularly having regard to his professional standing as a lawyer and emphasising that taking a bribe is contrary to the disciplinary code of his profession. He also highlights the fact that destroying evidence or obstructing the course of judicial proceedings, are offences that are punishable by seven years imprisonment in Uganda. The plaintiff avers that the Reported Content impinges on his standing and reputation as a lawyer and takes issue with the fact that they remain visible on the defendant’s site. The plaintiff further avers that since the publication of the posts, a number of his colleagues, acquaintances, business associates and clients have queried and remarked on the articles, which according to the plaintiff, has caused him anxiety and severe stress; he also avers that he has been held up to public ridicule, contempt and threats.
Defendant’s Replying Affidavit
10. The defendant delivered a replying affidavit sworn by a Mr. Jack Gilbert, its lead litigation counsel on 9th June, 2016. In his affidavit, which contains a mixture of averments as to fact and legal submissions, Mr. Gilbert avers that it is not legally required of or possible for the defendant to monitor proactively material published by its users on the Facebook site; as of March 2016, there were 1.09 billion daily active users of the Facebook service and 1.65billion monthly active users. It is averred that given the sheer amount of content on the site, comment and opinion about public figures and politicians is inevitable. Mr. Gilbert refers to the defendant’s community standards which are are annexed to its “Statements of Rights and Responsibilities” and in respect of public figures those standards state (according to Mr Gilbert):
“Facebook permits open and critical discussion of people who are featured in the news or have a large public audience based on their profession or chosen activities. Facebook removes credible threats to public figures, as well as hate speech directed at them – just as it does for private individuals.”
11. Mr. Gilbert avers that the defendant is not a publisher of content on the Facebook site, and that the defendant did not publish or cause to be published any of the Reported Content. It is stated that the defendant is an information society service provider within the meaning of the E-Commerce Directive, i.e. Directive 2000/31/EC (hereafter “the Directive”) as transposed into Irish law by the European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. 68 of 2003) (“hereafter “the Regulations”) and as such, the defendant is not liable for any allegedly defamatory content created by its users. In this regard, Mr. Gilbert avers that the defendant will be entitled to rely upon the defence of innocent publication pursuant to Section 27 of the Act of 2009. It is further stated that the defendant is not an arbiter of fact and is not in a position to determine the truth or falsity of the Reported Content.
12. Mr. Gilbert avers that the plaintiff does not assert in his grounding affidavit that the Reported Content is untrue. The defendant also seeks to highlight the lack of contextual background provided by the plaintiff in respect of the publication of the Reported Content. It is averred that by conducting a simple “google” search, the defendant located a number of articles online concerning the plaintiff, including the following:
(a) A decision of Kitumba J. in the Supreme Court of Uganda of 3rd July 2014, wherein the Judge makes a number of comments about the plaintiff’s misconduct as a lawyer, including that the plaintiff behaved unprofessionally throughout the proceedings and misrepresented events that occurred in the judge’s chambers; that he completely lost control and treated the judge like a criminal or witness under cross examination; that the plaintiff was suspended from a certain court until his disciplinary proceedings before the Law Council were heard.
(b) An article entitled “Court blocks sh8b payment of city lawyer” dated 14th July 2014 wherein it is alleged that the plaintiff entered into an agreement with an oil company, whereby he would be paid costs plus 16% of the proceedings from a case, with an extra 4% if the case was appealed, by way of remuneration for representing the oil company concerned and that the Supreme Court ruled such an agreement as illegal;
(c) An article entitled “Supreme Court Orders Lawyer Muwema Arrest over Shs 4bn” dated 21st August 2015, in respect of the alleged agreement referred to at (b).
(d) An article entitled “Lawyer Muwema Denies Taking Sh900m To Betray Mbabazi” dated 21st March 2016, in which the plaintiff refuted social media allegations that he took a Shs900 million bribe to undermine a presidential election petition. The article goes on to allege that the plaintiff organised a break-in to his own chambers during the course of which affidavits were stolen.
(e) An article entitled “Mbabazi Petition: Muwema Fires Back on Shs 900m Bribe” dated 21st March 2016, wherein the plaintiff refuted social media claims of bribes and denied any involvement in the break-in at his law offices.
(f) An article in the “Uganda Drone” entitled “Ugandan Lawyer Fred Muwema in trouble over illicit dealings with security operatives” dated 24th March 2016 wherein it is alleged that the plaintiff was paid 900 Uganda shillings to cooperate in the hunt of Mr. TVO, an online activist.
(g) An article entitled “I wasn’t bought off to drop from Mbabazi case – Muwema” where the plaintiff gives an interview and refutes the allegations against him, including allegations of bribery and states that because he is involved in high profile cases, “attacks” on him are inevitable.
13. On this basis, Mr. Gilbert avers that the plaintiff has, at the very least, been the subject of considerable controversy in Uganda. He suggests that the plaintiff’s averment that his law firm enjoys an especially high standing in Uganda is false, especially in light of the fact that the Ugandan Supreme Court has condemned the plaintiff’s misconduct and ordered his arrest. Mr. Gilbert avers that the plaintiff’s description of his professional standing is misleading and also points to the fact that the plaintiff had recently separated from the partners in his law firm, and that this fact was not deposed to by the plaintiff when grounding his application.
14. On the basis of the foregoing, Mr. Gilbert argues, that the Reported Content does not cause the plaintiff reputational damage for two reasons. Firstly, content concerning the plaintiff’s reputation is not limited to the defendant’s site, but is freely available elsewhere on the internet. Secondly, content concerning the plaintiff’s reputation has circulated the internet for a period of two years, while the Reported Content has only been available on the defendant’s site for a period of three months. Mr. Gilbert avers that if the plaintiff suffered any reputational damage, that damage must have existed long before the Reported Content appeared on Facebook.
15. Therefore, Mr. Gilbert argues, that there would be no practical utility in removing the Reported Content when a number of other websites have content containing the same allegations for quite some time. In essence, “the genie has been let out of the bottle”. Mr. Gilbert avers that the Reported Content is typical of content on the defendant’s site involving public and especially political figures. He says the Reported Content is merely the opinion of an individual and is not for example news from a reputable news outlet.
16. Additionally, Mr.Gilbert avers that, in his affidavit grounding this application, that the plaintiff has failed to place all of the relevant material before the Court, by failing to mention matters already in the public domain that have a bearing upon his reputation.
17. Mr Gilbert avers that in reality, the plaintiff’s complaint is against the person who created or published the Reported Content and not against the defendant and on that basis, the defendant does not oppose a limited “Norwich Pharmacal” order in respect of TVO, but the defendant is not willing to consent to a similar order in respect of the identity of the potentially thousands of individual posters or the TVO page.
Replying Affidavit of the Plaintiff
18. The plaintiff swore an affidavit in response to the affidavit of Mr. Gilbert on 16th June 2016. This affidavit also contains a mixture of averments as to fact and legal submissions. He states that the defendant proffers no evidence to support the allegation that he was in receipt of bribes. It is also stated by Mr. Muwema that the defendant continues to allow TVO to post defamatory material and draws the Court’s attention to a post by TVO on 1st June, 2016 which sates:
“I am still busy collecting evidence on people who betrayed Ugandans in the recent election and I will be publishing a full report soon, and then this lousy Advocate Muwema, who pocketed bribes both in the Mukono-Katpso Road Project and represented a fake company (see attachment) where the tax payer lost trillions, comes up with his futile attempt to cleanse himself from his participation in his office “break in”. He must be reminded that Facebook is not banana republic enterprise [sic], and it has been sued by lawyers basb [sic] in Manhattan, Times Square, to no result. For their ground rule is to protect freedom of information, so the lawyers Muwema hired from little suburb of Dublin, Ireland, may sound scarily to Ugandan ears, but they will hit a dead end.”
19. The plaintiff seeks to argue that there is an obligation on the defendant to monitor and remove unlawful content, once it received proper notification from the plaintiff. He avers that the defendant has violated its own Statement of Rights and Responsibilities in not removing the Reported Content, despite having “found nothing to lead to a finding that the material is true.” The plaintiff takes exception to the averment in Mr. Gilbert’s affidavit that the posts amount to comment and opinion.
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 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.
33. The plaintiff also seeks to rely on the case of XY v. Facebook Ireland Ltd. [2012] NIQB 96, which concerned the grant of a “take down” order in respect of a Facebook page containing the name and photograph of a man convicted of sexual offences. In that case, the High Court of Northern Ireland held that the content of the offending web page constituted unlawful harassment of the applicant, and created a real risk of infringing his rights under the European Convention on Human Rights (hereafter “the Convention”). However, it was submitted on behalf of the plaintiff that in these proceedings the case for interlocutory relief is stronger insofar as there is continual repetition and publication of the Reported Content and that it will remain on the defendant’s site until the hearing of the matter, unless interlocutory relief is granted. The plaintiff also relies on the case of Tansey v. Gill [2012] 1 I.R. 380 in support of this argument. In that case Peart J. granted the plaintiff injunctive relief as against the author of the defamatory content in circumstances where he was fully satisfied from the affidavits exchanged that the first named defendant could have no defence to the proceedings.
34. Counsel for the plaintiff also addressed potential defences open to the defendant in the proceedings. In this regard, it is submitted that the defendant did not suggest it intended to rely upon or even lay any ground in support of a defence of truth. It is further submitted that the defence of innocent publication, under section 27 of the Act of 2009 does not arise because the defendant is now aware of the Reported Content.
35. Counsel also addresses the defendant’s argument that the plaintiff will not succeed at the trial of action because his reputation is already tarnished. In response to this argument, it is submitted on behalf of the plaintiff that any findings made by the Ugandan Supreme Court with regard to the plaintiff’s misconduct, or any findings vis-á-vis the professional conduct of the plaintiff are wholly removed from the import of the Reported Content. Furthermore, it is submitted that any evidence in this regard merely goes towards mitigating damages at the trial of the action, and does not preclude the defendant pleading the defence of truth or adducing relevant evidence at trial regarding the plaintiff’s reputation.
36. In addressing the defendant’s argument that equity does nothing in vain and that there is no utility in granting the injunction, it is submitted on behalf of the plaintiff that that argument fails to take account of the fact that the interviews given by the plaintiff were given subsequent to the first postings by TVO and were given by the plaintiff to deny the allegations being made by TVO; it is submitted that such an argument, if successful, would undermine the ability of the Court to grant injunctive relief under section 33 of the Act of 2009. Having regard to the fact that TVO has, since March 2016, posted further articles relating to the bribery allegation, the plaintiff submits that it is highly likely that TVO will persist in posting articles in the absence of the injunction.
37. The plaintiff argues that no prejudice will be suffered by the defendant as a consequence of the granting of the injunction. Finally, it is submitted that there has been no non-disclosure of any relevant material on the part of the plaintiff and that the material related to the proceedings in which the plaintiff was censured by the Supreme Court of Uganda was not material to the Reported Content.
Submissions of the Defendant
38. The defendant submits that it is not a publisher of the content complained of by the plaintiff. Accordingly, it may rely upon the defence of innocent publication, as provided for in s. 27 of the Act of 2009, which provides as follows:
“27 – (1) It shall be a defence (to be known as the “defence of innocent publication”) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—
(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.”
39. The defendant also submits that it is an information society service provider within the meaning of the Directive and the Regulations and as such has no liability for material published by users on the Facebook service. The relevant provisions in the Regulations are regulations 15-18 which provide as follows:-
“15. A provision of Regulation 16, 17 or 18 providing that a relevant service provider shall not be liable for a particular act shall be construed as a provision to the effect that the provider shall not –
(a) be liable in damages or, unless otherwise provided, be liable to be the subject of an order providing for any other form of relief, for infringing, by reason of that act, the legal rights of any natural or legal person or, by reason of that act, for breaching any duty, or
(b) (b) be liable to be subject to any proceedings (whether civil or criminal) by reason of that act constituting a contravention of any enactment or an infringement of any rule of law.
16. (1) An intermediary service provider shall not be liable for information transmitted by him or her in a communication network if —
(a) the information has been provided to him or her by a recipient of a relevant service provided by him or her (being a service consisting of the transmission in a communication network of that information), or
(b) a relevant service provided by him or her consists of the provision of access to a communication network,
and, in either case, the following conditions are complied with —
(i) the intermediary service provider did not initiate the transmission,
(ii) the intermediary service provider did not select the receiver of the transmission, and
(iii) the intermediary service provider did not select or modify the information contained in the transmission.
(2) References in paragraph (1) to an act of transmission and of provision of access include references to the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communications network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
(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.
17. (1) An intermediary service provider shall not be liable for the automatic intermediate and temporary storage of information which is performed for the sole purpose of making more efficient that information’s onward transmission to other users of the service upon their request, if —
(a) that storage is done in the context of the provision of a relevant service by the relevant service provider consisting of the transmission in a communication network of information provided by a recipient of that service,
and
(b) the following conditions are complied with —
(i) the intermediary service provider does not modify the information,
(ii) the intermediary service provider complies with conditions relating to access to the information,
(iii) the intermediary service provider complies with any rules regarding the updating of the information that have been specified in a manner widely recognised and used by industry,
the intermediary service provider does not interfere with the lawful use of technology, widely recognised and used by industry to obtain data on the use of the information, and
(iv) the intermediary service provider acts expeditiously to remove or disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
(2) 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.
18. (1) An intermediary service provider who provides a relevant service consisting of the storage of information provided by a recipient of the service shall not be liable for the information stored at the request of that recipient if —
(a) the intermediary service provider does not have actual knowledge of the unlawful activity concerned and, as regards claims for damages, is not aware of facts or circumstances from which that unlawful activity is apparent, or
(b) the intermediary service provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
(2) Paragraph (1) shall not apply where the recipient of the service is acting under the authority or the control of the intermediary service provider referred to in that paragraph.
(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.
40. While the plaintiff relies upon Regulation 18(3) of the Regulations in support of this application, the defendant submits that Regulation 18 otherwise limits the liability of intermediary service providers in respect of claims of damages provided that, the intermediary service provider does not have actual knowledge of the unlawful activity concerned or, upon obtaining such knowledge, acts expeditiously to remove same. In this regard the defendant says that it does not know whether or not the Reported Content is unlawful, and that it is therefore entitled to the benefit of the protection afforded by Regulation 18.
41. The defendant relies upon the decisions of the Court of Justice of the European Union (“CJEU”) in the cases of Scarlet v. SABAM [C-70/10, 24th November 2011] and SABAM v. Netlog NV (C-360/10) [2012] 2 CMLR 18. In those cases the CJEU had to consider whether or not the imposition upon the defendant, which in each case was an ISP used by third parties to access music and other materials protected by copyright, of an obligation to monitor the data of their customers in order to prevent infringement of intellectual property rights owned by members of the plaintiff, was in compliance with, inter alia, the e-commerce directive. The imposition of such an obligation would have required the defendant to install complicated and costly systems at its own expense, and would also have involved the identification and analysis of customers’ data. The CJEU had to weigh on the one hand the protection of the intellectual property rights belonging to those represented by the plaintiff against, on the other hand, freedom to conduct a business, the right to protection of personal data and the freedom to receive or impart information. The CJEU considered that the imposition of an injunction requiring the defendant to install a system for filtering all electronic communications passing via its services, which would be applied indiscriminately to all of its customers and for an unlimited period, in order to prevent illegal downloads of music, to be disproportionate and contrary to the e-commerce directive. The defendant submits that the prior restraint orders sought by the plaintiff in this case would similarly offend the e-commerce directive.
42. The defendant relies also upon the decision of Clarke J. in Mulvaney v. The Sporting Exchange Ltd. t/a Betfair [2009] IEHC 133. In that case the plaintiff claimed to have been defamed by material posted on a Betfair chatroom by Betfair clients. In addition to bringing proceedings against those who posted the material, the plaintiff sought relief against Betfair as operator of the chatroom. Betfair relied successfully upon Regulation 18 of the Regulations in its defence. Clarke J. held:-
“As the service provided by Betfair, through its chatroom, clearly falls within the meaning of “relevant service” as defined by the 2003 Regulations, it follows that Betfair, in providing this service, is a “relevant service provider” and so an “intermediary service provider” within the meaning of the 2003 Regulations. Betfair is, therefore, entitled to the benefits of Regulations 15 and 18 of the 2003 Regulations.”
The determination made by Clarke J. in Mulvaney was made by way of the determination of a preliminary issue, not in the context of an application for prior restraint orders. The effect of the decision was to declare that the defendant was eligible to avail of the defences provided by the Regulations, subject to the conditions concerning knowledge and expeditious action set out in the Regulations.
43. The defendant submits that it is in the same position as Betfair was in Mulvaney – the defendant merely posts comments and material in a manner entirely analogous to chatroom hosting. Accordingly, the defendant submits, it is entitled to benefit from the relevant defences set out in the Regulations and it must succeed with those defences in circumstances where it has never had actual knowledge that the content published by TVO about the plaintiff was defamatory or otherwise unlawful.
44. It is also submitted on behalf of the defendant that the substance of the Reported Content, and other highly critical commentary of the plaintiff is available on other internet sites; moreover, the plaintiff has given an interview to the media which was reported very widely, and in which he refuted the very allegations that he now seeks to suppress. Accordingly the “take down” orders sought by the plaintiff , even if granted, will be ineffective because the same material the plaintiff wants taken down from the defendant’s site remains easily accessible elsewhere on the internet . Accordingly, the defendant submits, the orders sought by the plaintiff should not be granted because “Equity, like nature, does nothing in vain”. The defendant relies on the authority of Mosley v News Group newspapers ltd 2008 EWHC 687 (QB), 36 wherein Eady J said:-
“In the circumstances now prevailing, as disclosed in the evidence before me, I have come to the conclusion that the material is so widely accessible that an order in the terms sought would make very little practical difference. One may express this conclusion either by saying that Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact 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:
Defamation Act 2009
51. As stated above, s. 33 of the Act of 2009 provides that the Court may, upon the application of a plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if, in its opinion:-
(a) The statement is defamatory, and
(b) The defendant has no defence to the action that is reasonably likely to succeed.
52. Section 27 of the Act of 2009, the relevant provisions of which I have set out above, provides a defence of innocent publication, the effect of which is that a person shall not be deemed to be the author, editor or publisher of a statement to which an action relates if, in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available. This appears to capture the circumstances giving rise to these proceedings.
53. On the face of it therefore the defendant has available to it a statutory defence to the proceedings issued against it. It was submitted on behalf of the plaintiff that the defendant cannot avail of the defence of innocent publication because it was made aware by the plaintiff of the defamatory material and declined to take it down from its platform. But the criteria for eligibility for the defence are not drawn in this way and at this remove at least it seems likely the defendant is entitled to avail of the defence provided for under s.27(2)(c) of the Act of 2009 and this conclusion by itself has the effect of precluding the plaintiff from obtaining an order under s. 33 of the Act of 2009.
Regulation 18(3) of the E-Commerce Regulations
54. Regulations 15-18 of the Regulations also provide another line of defence to the Defendant. In Mulvaney, Clarke J. held, in circumstances very similar to these, that the defendant was entitled to the protection of the Directive (and, therefore, the Regulations), subject to meeting the conditions concerning knowledge and expeditious action as set out therein. The defendant in my view has a reasonable likelihood of success in defending the proceedings on this ground also. For this reason too, the defendant is not eligible for relief under the Act of 2009.
55. The plaintiff however places reliance upon Regulation 18(3) of the Regulations. The effect of Regulation 18(3) is to preserve any power otherwise vested in the Court to make an order against an ISP requiring it not to infringe, or to cease to infringe, any legal rights. It is clear that this Regulation envisages that a court may make such an order even in circumstances where an ISP otherwise enjoys an exemption from liability to a plaintiff by reason of Regulation 18(1). In other words, under the Regulations, an ISP may enjoy immunity in suit for damages, but a court may nonetheless make an order against the ISP, if the Court otherwise has power to make such an order, requiring the ISP not to infringe, or to cease to infringe any legal rights. Importantly however, the Regulations themselves do not confer a power upon the Court to make such an order – the power to do so must be derived from elsewhere.
56. In this regard, the power of the Court to make such orders in actions for defamation is now set out in s. 33 of the Act of 2009, and is subject to the limitations set out therein. For the reasons given above, I have concluded that the plaintiff is not entitled to an order under this section, by reason of the defence that is available to the defendant under s. 27(2)(c) of the Act of 2009.
57. Before the Act of 2009, the Court did of course exercise much the same powers as are conferred by s. 33 of the Act of 2009 in appropriate cases. This jurisdiction was exercised by the court very sparingly, having regard to the importance attached by the courts and by society at large to freedom of expression, and on much the same terms as are expressed in s. 33 of the Act of 2009 i.e. it has always been the case that, in order to obtain an order for prior restraint, a plaintiff was required to demonstrate that there was no doubt that he words complained of were defamatory, and that it was clear that he would ultimately succeed at a trial and that “none of the possible lines of defence which may be open to a defendant could reasonably succeed.” (Per Clarke J. in Cogley v. RTE [2005] 4 IR 79)
58. The Court held when granting the orders sought in the case of Tansey v. Gill [2012] IEHC 42, a case relied upon by the plaintiff in which Peart J. said:
“The internet has facilitated an inexpensive, easy, and instantaneous means whereby unscrupulous persons or ill motivated malcontents may give vent to their anger and their 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 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.