Intermediary Issues
Further Cases
Digital Rights Ireland Ltd -v- Minister for Communication & Ors
[2010] IEHC 221 [2010] 3 IR 251
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 5th day of May 2010
1. The Plaintiff is a limited liability company, limited by guarantee, incorporated under the Companies Acts 1963-2003, on the 4th November 2005, and has its registered office at 1 Caiseal na Rí, Cashel, Co. Tipperary. It has as one of its objects, in its Memorandum of Association, the promotion and protection of civil and human rights, particularly those arising in the context of modern communication technologies.
2. The First and Second Named Defendants are Ministers of Government and corporations sole and have their principal offices at 29/31 Adelaide Road and St. Stephen’s Green in the City of Dublin, respectively.
3. The Third Name Defendant (“The Garda Commissioner”) is the person charged with responsibility for the Garda Síochána and has his principal offices at Garda HQ Phoenix Park in the City of Dublin. He is entrusted with a purported power under section 63(1) of the Criminal Justice (Terrorist Offences) Act 2005 to issue a Direction or Directions to telecommunications services providers.
4. The Fourth Named Defendant is Ireland and the Fifth Named Defendant is the law officer of the State designated by the Constitution of Ireland and is sued in his representative capacity.
5. The Notice Party, joined as such in these proceedings, is a statutory body corporate established by section 4 of the Human Rights Commission Act 2000. It is so joined pursuant to section 8(h) of the aforesaid Act and appears as amicus curiae in the above entitled proceedings.
6. This judgment relates to the following three matters, the first two moved by the Defendants and the third by the Plaintiff, all of which were heard by way of preliminary issues:
i) The locus standi of the Plaintiff;
ii) Whether security for costs should be granted against the Plaintiff;
iii) Whether a reference to the Court of Justice (“CoJ”) under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) (formerly Article 234 of the Treaty establishing the European Communities (“TEC”)) should be made.
Background:
7. The background to the case, as the Plaintiff alleges, is that in or around the 25th April 2002 the Minister for Public Enterprise, the predecessor of the First Named Defendant, issued a direction under s. 110(1) of the Postal Telecommunications Services Act 1983 (as amended by the Interception of Postal Packets and Telecommunication Messages (regulations) Act 1993) to certain telecommunications services providers to retain telecommunications data. Such direction was to be treated as confidential. Following this direction the First Named Defendant came into possession of, and had and exercised control over, data relating to the Plaintiff, its members and other users of mobile phones.
8. By letter dated 19th December 2002 the Data Protection Commissioner advised the Department of Communications, Marine and Natural Resources that the above-mentioned direction was ultra vires, constitutionally invalid and was in breach of the Data Protection Acts 1988/2003 and S.I. 192 of 2002; with the grounds therefor being that as the objectives sought by the direction amounted to a derogation from the then existing data protection legislative scheme, the same could only be enacted through primary legislation. The Data Protection Commissioner advised the Defendants that failing a satisfactory response he would issue judicial review proceedings to challenge the validity of any direction(s) the Minister purported to make under the Postal Telecommunications Services Act 1983.
9. Some of the concerns of the Data Protection Commissioner were addressed in Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 (“CJ(TO)A 2005”), which made provision for the retention of traffic and location data, relating to communications transmitted by fixed line or mobile telephone, and access to such data retained for law enforcement and security purposes.
10. The Plaintiff alleges that on a date or dates unknown, following the coming into force of the above Act of 2005, the Garda Commissioner issued a direction under the provisions thereof to telecommunications service providers to retain data.
11. The European legal framework in place at the time was governed by Directive 95/46/EC (‘on the protection of individuals with regard to the processing of personal data and on the free movement of such data’) and Directive 97/66/EC (‘concerning the processing of personal data and the protection of privacy in the telecommunications sector’), later repealed by Directive 2002/58/EC (‘concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)’). These Directives aimed to harmonise the position of Member States:
“[T]o ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community” (Article 1, Dir. 2002/58/EC)
The focus of these Directives was thus the protection of privacy rights arising from data retention.
12. On 6th May 2006 Directive 2006/24/EC (‘on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC’) was published. Article 1 of Directive 2006/24/EC states:
“1. This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.
2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registration user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.”
The ultimate purpose of this Directive was to clarify the right of Member States to legislate obligations of disclosure upon communications services providers in relation to traffic and location data, and to harmonise the minimum and maximum periods of retention of the specified data, namely to six months and 2 years respectively (Article 6).
13. In this case the Plaintiff alleges that the Defendants have wrongfully exercised control over data, in that they have illegally processed and stored data relating to the Plaintiff, its members, and other mobile phone users contrary to: (i) statute, (ii) EC law, and (iii) the Constitution, in particular having regard to the Plaintiff’s asserted rights to privacy, to travel and to communicate (Arts. 40.3.1°, 40.3.2° and 40.6.1°), and (iv) the European Convention on Human Rights (“ECHR”), in particular the right to private life, to family life, and to privileged communication (Arts. 6(1), 8 and 10). These allegations involve a claim that s. 63(1) of the CJ(TO)A 2005 is invalid on the within grounds and further that Directive 2006/24/EC is contrary to the Charter of Fundamental Rights (“CFR”) and the ECHR.
14. The synopsis last given is simply that: the proceedings as shown by the pleadings are detailed and complex. For present purposes I would adopt as useful the following summary of the remedies sought by the Plaintiff:
i) Declarations to the effect that the Minister for Communications and/or the Garda Commissioner have acted in breach of the Data Protection Acts 1988/2003 and/or in breach of EU law;
ii) Declarations to the effect that s. 63(1) of the CJ(TO)A 2005 is null and void for breach of the Constitution and/or EU law, and/or is incompatible with Ireland’s obligations under the ECHR;
iii) A Declaration that the State has failed in its obligation to give effect to EU law;
iv) A Declaration that Directive 2006/24/EC is null and void for breach of the EC Treaty and/or on the grounds that it was adopted without any legal basis;
v) Reliefs including injunctive reliefs directed towards the lawfulness of the April 2002 communication by the Minister for Public Enterprise;
vi) If necessary, a Declaration that s. 110 of the Postal and Telecommunications Services Act 1983, as amended, is repugnant to the Constitution;
vii) Injunctions restraining the Defendants from acting under or giving effect to the impugned instruments including the EC Directive;
viii) An Order pursuant to Art. 267 TFEU referring the following questions to the CoJ for a preliminary ruling:
• Whether Directive 2006/24/EC is valid notwithstanding:
a) Article 6(1) and (2) of the Treaty on European Union (“TEU”)
b) Article 3a TEU and 21 TFEU (formerly Articles 10 and 18 TEC)
c) Articles 7, 8, 11 and 41 of the CFR
d) Article 5 TEU (formerly Article 5 TEC) (the principle of proportionality)
• Whether Directive 2006/24/EC regulating data protection is invalid insofar as it lacks a correct legal basis in EU law (this question has now been abandoned in light of Ireland v. European Parliament and Council of the European Union (Case C-301/06) (delivered on the 10th February 2009)).
ix) Damages;
x) Such other consequential reliefs and costs.
Locus Standi:
Submissions:-
15. Arguments were made on behalf of the parties in relation to the locus standi of the Plaintiff to claim infringement of certain of the rights, asserted by it or on its own behalf and by it on behalf of other mobile phone users as an actio popularis. As being the moving party, it would be convenient to firstly deal with the Defendants’ submissions in this regard.
16. The Defendants object to the extent of the rights claimed by the Plaintiff since the latter is a non-natural legal entity: in particular they deny it has the required standing to assert certain of the personal rights which it seems to rely upon. Further, whilst the Plaintiff describes itself as a non-governmental organisation (“NGO”), it has no formal status or recognition as such, either under domestic or international law. Nor does it have a significant track record of any substance, having been incorporated no earlier than the 4th November 2005.
17. The Defendants argue that for the courts to entertain a constitutional challenge, it must be demonstrated that the litigant’s rights have either been infringed or directly threatened. In relation to the rights claimed on behalf of others, the Plaintiff is in a different position since it is not a natural person. The doctrine of incorporation prevents a company from asserting rights on behalf of its members, except insofar as they are co-extensive with its own. A company therefore cannot assert rights which only its members would have; they must do that themselves. Furthermore, the Plaintiff cannot assert the putative rights of others, regardless of whom they may be, as firstly such would be a claim to ius tertii, contrary to the Supreme Court decision in Cahill v. Sutton [1980] I.R. 269, and secondly the position of the other people, namely in this case members of the Plaintiff company and “other users of mobile phones”, is nihil ad rem (see Norris v. Attorney General [1984] IR 36 at 58). In addition it is claimed that a company cannot have a right to private life or privacy, a right to family life, a right to travel (and to confidentiality of travel) and a right to communicate; the Plaintiff having no physical manifestation.
18. Even if the Plaintiff does have some rights, those rights are limited. Whether commercial expression by non-media companies is protected under Article 40.6.1° is, the Defendants assert, unclear (Attorney General v. Paperlink [1984] ILRM 373 cited). With regards to a company’s right to privacy, the Defendants draw attention to Caldwell v. Mahon [2007] 3 IR 542, where Hanna J. held that although a right to privacy exists in connection with the conduct of business affairs, such a right must be considered as being at “the outer reaches of and the furthest remove from the core personal right to privacy”.
19. The Defendants therefore contend that, in circumstances where the right is asserted over the fact and attendant circumstances of communication, as opposed to the content therein, the Plaintiff company has only the most limited right to privacy; certainly the purchase of a single mobile phone by the Plaintiff just over two months prior to the institution of these proceedings, cannot operate to confer standing upon it.
20. Further, the Defendants say, there is an over abundance of potential litigants who would have full standing to advance all aspects of the Plaintiff’s claim; any natural person who uses a mobile phone, any person criminally charged against whom the D.P.P. proposes to offer retained telecommunications data as evidence, the Human Rights Commission, the Data Protection Commissioner – and this is to name but a few. This is not a situation where the persons potentially prejudiced would be unable to assert their rights, as with the unborn in S.P.U.C. v. Coogan [1989] I.R. 743. Instead it is a situation more akin to those at issue in L’Henryenet v. Ireland size=”2″ face=”Verdana”> [1983] I.R. 193 where a fisherman was precluded from challenging the constitutionality of the Fisheries Acts on the basis that there was no question of the owner of the vessel in question not being in a position to assert his own constitutional rights.
21. Nor are there circumstances in this case which would merit a relaxation of the normal rules on standing. Such were considered in Construction Industry Federation v. Dublin City Council [2005] 2 IR 496, where the Supreme Court concluded, according to the Defendants, that there were two broad principles in this regard. Firstly, standing might be conceded to a person not directly affected in circumstances where administrative error (or maladministration) would otherwise go unchallenged, and secondly, a representative litigant should not be granted standing in circumstances where the interest it seeks to assert is that of its members and its members are themselves in a position to litigate.
22. This is not a case, either, involving the breach of a constitutional norm; that is a right which is constitutionally mandated, for example the administration of justice in public, the safeguarding of the institution of marriage, or the prohibition on the endowment by the State of any religion. The maintenance of these benefits all citizens equally and generally, such that one potential bona fide litigant is unlikely to be better qualified than any other. Nor is a public interest asserted, merely a collection of individual rights.
23. Finally, the Plaintiff cannot confer standing upon itself by virtue of its Memorandum of Association (S.P.U.C. v. Coogan [1989] I.R. 734 at 742).
24. Before embarking on a recitation of its position with regards to locus standi, it is convenient to deal with a submission made by the Plaintiff to the effect that this issue should not be determined as a preliminary one; instead it should take its normal place within the body of the action and await the Courts decision on all of the issues raised. I respectfully disagree with this assertion: I am satisfied that it is correct in this case to deal with locus standi as a preliminary issue. It is vital to the running of any case that the areas of dispute are laid out clearly. The issue of whether or not a Plaintiff has locus standi is fundamental, firstly to its existence as a plaintiff, and secondly to the range of arguments which may be advanced by it. Thus matters which a Plaintiff has no standing to bring are no longer relevant. If a Plaintiff should be found to lack standing in respect of all his claims, he will have no case at all. It is in the interests of all concerned, in particular with regards to costs and time, that this determination should be made as early as possible in the litigation, so that all future preparation and argument may be made without the need to consider matters which are, in actuality, extraneous and/or irrelevant. It is of course acknowledged that the Court may not always usefully adopt this approach, as there may well be cases where the critical framework can only be established at trial and after procedural steps, such as discovery etc. have been engaged upon. In this case however, I am satisfied that there has been sufficient engagement to properly inform a decision as to the standing of the Plaintiff vis-à-vis the various rights asserted by it.
25. By way of substantive reply, the Plaintiff asserts that this is a case where there should be a justified relaxation of the rules of standing. It notes the comments of Henchy J. in the Supreme Court in Cahill v. Sutton [1980] I.R. 269 at 285, that:
“This rule, however, being a rule of practice, must like all such rules, be subject to expansion, exception or qualification when the justice of the case so requires. Since the paramount consideration in the exercise of the jurisdiction of the Courts to review legislation in the light of the Constitution is to ensure that persons entitled to the benefit of a constitutional right will not be prejudiced through being wrongfully deprived of it, there will be cases where the want of the normal locus standi on the part of the person questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case, there is a transcendent need to assert against the statute the constitutional vision that has been invoked.”
The learned Judge gives examples of where the rules might be relaxed. These include where those prejudicially affected may not be in a position to assert their rights adequately, or in time, or if the impugned provision is directed at or operable against a group, which includes the challenger, or with whom the challenger may be said to have a common interest.
26. Drawing parallels with the liberal approach to locus standi in Crotty v. An Taoiseach [1987] 1 I.R. 713, the Plaintiff says that it is clear that the impugned provisions, which relate to the retention of data in respect of mobile phone, internet and e-mail communication of all persons who use such services, affect virtually every citizen and entity in the State, including the Plaintiff. In support of this contention the decision of the European Court of Human Rights (“ECtHR”) in Copland v. the United Kingdom (Case 62617/00, 3rd April 2007) [2007] ECHR 253, was cited, in which it was held that the collection and storage of such personal data amounted to an interference with Art. 8 rights (ECHR). A more liberal approach should therefore be allowed, in the Court’s discretion, to the issue of standing.
27. In response to the argument that as a company the Plaintiff should not be allowed to assert such broad interests, reference is made to S.P.U.C. v. Coogan [1989] 1 I.R. 734 and to Blessington Heritage Trust Limited v. Wicklow County Council and Others [1999] 4 IR 571. In the latter case, McGuinness J. held that a limited company had locus standi to bring proceedings challenging a planning decision. The Plaintiff also drew attention to the Supreme Court’s comments on locus standi in Lancefort Limited v. An Bord Pleanála and Others (No. 2) [1999] 2 IR 270 at 308. Keane J. in that case went on to conclude that a company could have locus standi to bring proceedings even if it was unable to point to any proprietary or economic interest in the impugned decision, and that a company may not be denied standing merely because it was not in existence at the time of the relevant decision.
28. In further submissions it is said that where the subject matter of the litigation involves questions of Community law, although in general procedural rules will be governed by national law, it must be borne in mind that there is an overriding obligation on the national court to uphold Community law, and national procedural rules should not operate in such a way as to undermine a claimant’s right to effective judicial protection. As noted by Keane J. in Lancefort v. An Bord Pleanála (No. 2) [1999] 2 IR 270 at 312:
“[T]he requirements of national law as to standing may in some instances have to yield to the paramount obligation on national Courts to uphold the law of the European Union.”
The Plaintiff seeks to make valuable use of this comment, noting that since this case involves a reference to the CoJ under Article 267 TFEU, the rules relating to locus standi (and security for costs) should be relaxed to take that into account.
Standing and Interest:-
29. In considering this issue, it should be noted that with regards to the alleged infringements of the Plaintiff’s rights, it is only necessary for the Court, in the context of deciding locus standi, to determine that a limited company may avail of such rights. It is not necessary for the Court to determine the extent or breadth of those rights. It is therefore sufficient for the Plaintiff to show that those rights are affordable to companies including it, and that the actions of the Defendants could affect them; if it can it will have locus standi to litigate as to whether those rights have in fact been infringed. Despite what follows, the context in which the discussion takes place should not be forgotten.
30. The seminal case in this regard is the decision of the Supreme Court in Cahill v. Sutton [1980] I.R. 269. Henchy J. proffered that:
“The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person’s interests have been adversely affected, by the operation of the statute.” (ibid. at 286)
However, this must also be read in light of his comments at p. 283 of the report where he stated that:
“While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury, to bring proceedings to have a particular statutory provision declared unconstitutional … [w]ithout concrete personal circumstances pointing to a wrong suffered or threatened, a case tends to lack the force and urgency of reality.”
In his judgment, O’Higgins C.J. felt that were this to be otherwise it might open the doors of the courts to “the busybody and the crank” (ibid. at 277).
31. Both the High Court and Supreme Court considered the extent of this principle in Crotty v. An Taoiseach [1987] IR 713. In that case a challenge was brought in relation to the constitutionality of enacting the provisions of the Single European Act without a referendum. Issue was taken with the standing of the plaintiff as he was unable to show that he would be more affected by the statute than any other citizen who could bring the action. In the High Court, Barrington J. considered that:
“It does appear to me, assuming the plaintiff were otherwise devoid of constitutional standing, that he has raised matters which are common to him and to other citizens and which are weighty countervailing considerations which would justify, on their own, a departure from the rule in relation to locus standi. But it does appear to me that in relation to one matter – and it is a basic matter – the plaintiff clearly has a locus standi because his contention that what is being done involves an amendment to the Constitution which should be submitted to a referendum, and that he, as a citizen, has the right to be consulted in such a referendum and that his right has been infringed.” (ibid. at 733-734)
In the Supreme Court, Finlay C.J., with Henchy and Walsh JJ. concurring, agreed with the High Court. Finlay C.J. stated:
“The Court is satisfied, in accordance with the principles laid down by the Court in Cahill v. Sutton [1980] I.R. 269, that in the particular circumstances of this case where the impugned legislation … will if made operative affect every citizen, the plaintiff has locus standi to challenge the Act notwithstanding his failure to prove the threat of any special injury or prejudice to him, as distinct from any other citizen, arising from the Act.” (ibid. at 766)
Thus it would appear that where the constitutionality of a law which will affect every citizen equally is impugned, a plaintiff will not necessarily be denied locus standi simply because he is unable to point to any specific prejudice or injury which the impugned legislation would visit upon him (see also para. 79 et seq. infra.).
Corporate Standing:-
32. The above cases of Cahill v. Sutton and Crotty v. An Taoiseach both relate to the locus standi of natural persons. Where the plaintiff is a corporate body do different considerations arise?
33. This question was considered in S.P.U.C. v. Coogan [1989] 1 I.R. 734. Referring to his decision in A.G. (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593, Finlay C.J. quoted from p. 623 of that judgment as follows:
“If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest in the protection of the constitutionally guaranteed right to life of the unborn, the courts, as the judicial organ of government of the State, would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts.”
He rejected as misconceived the defendant’s proposition that this paragraph was qualified by reference to the special position of the Attorney General, and reaffirmed that the “broad statement of principle contained in [this] paragraph remains unqualified” ([1989] 1 I.R. 734 at 742). The general test with regards to locus standi should thus be:
“[T]hat of a bona fide concern and interest, interest being used in the sense of proximity or objective interest. To ascertain whether such bona fide concern and interest exists in a particular case it is of special importance to consider the nature of the constitutional right sought to be protected.” (ibid. at 742)
34. Whilst Walsh J. in the same case emphasised the nature and importance of the right in question (the right to life of the unborn), his comments in my view have a broader application, especially when considered in light of the rights claimed, in the case at hand. He stated at p. 743 of the report:
“The question in issue in the present case is not one of a public right in the classical sense … but is a very unique private right and a human right which there is a public interest in preserving … What is in issue in this case is the defence of the public interest in the preservation of that private right which has been guaranteed by the Constitution. It is a right guaranteed protection by public law as it is part of the fundamental law of the State by reason of being incorporated into the Constitution.”
The learned Judge further noted the exceptional importance of access to the courts, which was essential to the vindication of all other rights. Thus with regards to standing “the essential question is has the plaintiff a bona fide interest to invoke the protection of the courts to vindicate the constitutional right in question” (ibid. at 744). In relation to Sutton v. Cahill he was of the opinion that:
“The decision … is not of such sweeping application as is sometimes thought. It can be understood only in the light of the narrow ground upon which the case was presented and argued and on the possible injustice to the defendant… It is quite clear … that even in cases where it is sought to invalidate a legislative provision the Court will, where the circumstances warrant it, permit a person whose personal interest is not directly or indirectly presently or in the future threatened to maintain proceedings if the circumstances are such that the public interest warrants it. In this context the public interest must be taken in the widest sense.” (ibid. at 746-747)
Finally, as the Plaintiff was a company limited by guarantee, established for the sole object of protecting human life, a question arose as to its right to bring the application. Finlay C.J. notes that:
“I would accept the contention that [the plaintiff] could not acquire a locus standi to seek this injunction merely by reason of the terms of its articles and memorandum of association… [However] the particular right which it seeks to protect with its importance to the whole nature of our society, constitute sufficient grounds for holding that it is a person with a bona fide concern and interest and accordingly has the necessary legal standing to bring the action.” (ibid. at 742)
35. Whilst Coogan did not involve a constitutional challenge to any particular piece of legislation, there is no reason, in my view, as to why it would not equally apply to such a case. Therefore it would thus seem to me that, in principle, a company should not be prevented from bringing proceedings to protect the rights of others where, without otherwise being disentitled, it has a bona fide concern and interest, taking into account the nature of the right which it seeks to protect or invoke.
36. Some ten years after S.P.U.C. v. Coogan was decided, this issue was again addressed by the Supreme Court in Lancefort Ltd. v. An Bord Pleanála & Ors. (No. 2) [1999] 2 IR 270. At pp. 286-289 of the report, Denham J. said:
“In McGimpsey v. Ireland [1988] I.R. 567, Barrington J. held that it would be inappropriate for the court to refuse to hear the plaintiff’s case on the grounds of lack of locus standi, particularly since the plaintiffs were patently sincere and serious people who had raised an important constitutional issue which affected them and thousands of others on both sides of the border. Prior to that case it had been accepted in Crotty v. An Taoiseach [1987] IR 713, that a citizen who was exposed to no greater injury than other citizens would still have status to challenge legislation on a treaty if he could show he was being denied a referendum and that the proposed Act violated the Constitution.”
This case related to an issue of environmental law, which the Court felt “by [its] very nature affect[s] the community as a whole in a way a breach of an individual personal rightdoes not.” (ibid. at 292)
37. Dealing specifically with the standing of a company, Denham J., in the same case, at p. 292 of the report stated that:
“Indeed both the public interest and the benefit of corporations was addressed in R. v. Pollution Inspectorate; ex p. Greenpeace (No. 2) [1994] 4 All ER 329. An issue was whether or not the limited company had locus standi in the judicial review, the law required it had ‘sufficient interest’. Otton J. stated:-
‘It seems to me that if I were to deny standing to Greenpeace, those it represents might not have an effective way to bring the issues before the court. There would have to be an application either by an individual employee of BNFL or a near neighbour. In this case it is unlikely that either would be able to command the expertise which is at the disposal of Greenpeace. Consequently, a less well informed challenge might be mounted which would stretch unnecessarily the court’s resources and which would not afford the court the assistance it requires in order to do justice between the parties.’”
She continued that:
“A company is not barred per se from being a party to judicial review proceedings. A company may be formed for many reasons; once formed, it is a legal person with the right, inter alia, to litigate. The notice party in this case is a company, it is a vehicle. The applicant is also being used as a vehicle for people to pursue environmental objects. The fact that the applicant was established after the decision of the first respondent which is in issue does not exclude it per se from access to the courts, rather it is a factor for consideration in light of the history of the relevant events.”
She did note that the bona fides of the company may be a relevant factor in considering if it has locus standi, and in the circumstances the corporate veil may be lifted to determine this.
38. This having been established, the company should be considered in light of the public interest:
“Here we find a tension between the public interest as represented by public bodies established for that benefit by the State i.e. the first respondent, balanced against the right of persons (incorporated or not) to have access to court to litigate the issue as to whether the public interest, indeed the common good, is being protected. It is a fundamental right in a democracy that there be access to the courts. The fact that a statutory body has been given a public duty on behalf of the State does not mean that its decisions are not reviewable. Nor does it exclude other persons from raising related issues in the public interest.” (ibid. at 294)
Denham J. thus concluded at p. 296 et seq. that:
“I am satisfied that the applicant has locus standi in this case. In making this decision I have considered all the circumstances, fact and law as set out previously in this judgment. The fact that the applicant is a company does not bar it per se from the litigation, although its incorporation after the decision in issue by the first respondent must be considered carefully. Its bona fides, actions and documentation are all relevant. I agree with the trial judges that the veil of incorporation should be lifted and that the prior actions and involvement of the members be considered. On doing that, having also considered the documentation and actions of the applicant, I am satisfied that the applicant is acting bona fide…
The common law on locus standi has been developed to aid the administration of justice. The crank, vexatious litigant and stranger is excluded from the courts. The applicant does not belong to any of these categories.
The principles of locus standi have been extended by the courts in some cases to situations where concerned citizens have sought to protect the public interest. The analogy of those cases, where the constitutionality of laws was queried, should be applied in this case. The track laid by S.P.U.C. v. Coogan [1989] I.R. 734, Crotty v. An Taoiseach [1987] IR 713 and McGimpsey v. Ireland [1988] I.R. 567 and environmental actions such as Chambers v. An Bord Pleanála [1992] 1 I.R. 134 and R. v. Pollution Inspectorate; ex p. Greenpeace (No. 2) [1994] 4 All ER 329, is firm and the cases provide appropriate precedents. This approach is just, aids the administration of justice, would not permit the crank, meddlesome or vexatious litigant thrive, and yet enables the bona fide litigant for the public interest establish the necessary locus standi in the particular area of environmental law where the issues are often community rather than individual related. The administration of justice should not exclude such parties from the courts. Whether or not they succeed in their action is quite another matter – but they should not be excluded from the courts to litigate the issue.”
It should be noted that Denham J. was in the minority as to the ultimate outcome; the Court finding that the company lacked a “sufficient interest”. However the principles of law enunciated above were effectively agreed with by Keane and Lynch JJ.
39. McGuinness J. in Blessington Heritage Trust Ltd. v. Wicklow County Council & Ors [1999] 4 IR 571 at 595, considering the extent to which companies incorporated for the protection of rights could be afforded standing, noted that:
“Over-reliance on the incorporation of companies such as the applicant in this case may tip the balance too far in favour of objectors or concerned local persons; on the other hand, blanket refusal of locus standi to all such companies may tip the balance too far in favour of the large scale and well-resourced developer. It seems to me that the balance is best preserved by the course followed by the learned Morris J. [in Lancefort Ltd. v. An Bord Pleanála [1998] 2 IR 511]. The court should look at the factual background in each case and, if necessary, maintain the balance by the making of an order for security for costs.”
It is true that that case related to a planning challenge, but McGuinness J’s comments hold equally true in a situation where the challenge is to the constitutionality of an action of the State, or organs thereof. In truth, there is even more justification for a broad and balanced approach to this issue where a challenge, particularly one of substance, is made to the constitutionality of a statute, since there is a constitutional imperative for the courts to uphold the Constitution and any alleged breaches thereof should be treated in the most serious manner.
40. The Defendants sought to rely on the Supreme Court decision in Construction Industry Federation v. Dublin City Council [2005] 2 IR 496 as an example of where standing has been refused. The plaintiff in that case was an unincorporated association representing the interest of parties involved in the construction industry. The Court considered the English decision of R. v. Inland Revenue Commissioners, ex parte Federation of Self-Employed Businesses Ltd. [1982] 2 All E.R. 93, citing the ratio of the case as expressed in the headnote that:
“Whether an applicant for mandamus has a sufficient interest in the matter to which the application related … depended on whether the definition (statutory or otherwise) of the duty alleged to have been breached or not performed expressly or impliedly gave the applicant the right to complain of the breach of non-performance.” (ibid. at 94)
The Court however, having considered the case law on locus standi, ultimately refused standing to the plaintiff saying:
“In the present case, the applicant claims to have a sufficient interest on the basis that the proposed scheme affects all or almost all of its members in the functional area of the respondent and, therefore, the applicant has a common interest with its members. However, it appears to me that to allow the applicant to argue this point without relating it to any particular application and without showing any damage to the applicant itself, means that the court is being asked to deal with a hypothetical situation, which is always undesirable. This is a challenge which could be brought by any of the members of the applicant who are affected and would then be related to the particular circumstances of that member. The members themselves are, in many cases, very large and financially substantial companies, which are unlikely to be deterred by the financial consequences of mounting a challenge such as this. Unlike many of the cases in which parties with no personal or direct interest have been granted locus standi, there is no evidence before the court that, in the absence of the purported challenge by the applicant, there would have been no other challenger. …”
Whilst dismissing any suggestion that the plaintiff was acting vexatiously or irresponsibly in seeking relief, the Court nonetheless could not “see any justifiable basis upon which it can be said that the applicant has any interest other than that of its individual members.”
41. In my opinion this case is entirely distinguishable from the one at hand, indeed the Supreme Court stated that “consideration of this question must depend largely on the circumstances of the individual case”. The plaintiff in C.I.F. was not a company, but an unincorporated association. It was an action for judicial review, rather than a constitutional challenge. As pleaded it raised hypothetical questions, whereas if the action had been taken by any of its members, a firm, definite and concrete framework would have been established. In fact each such case would have been particular to that plaintiff, as separate variables would apply. It was also clear that the plaintiff would in no way be affected personally by the impugned provisions, as its interest was identified wholly with those of its members. The plaintiff was also seeking an order for mandamus, rather than certiorari, which may have been a factor. In the present case it is clear that the plaintiff has an interest in this matter separate and distinct from its members. Although there may be some overlap between the company’s and its members’ interests, this in no way precludes the company from relying on an interest it holds in its own right.
42. Nonetheless, the concept that a person, otherwise not prejudiced by the impugned action, may be found to have a sufficient interest was considered in Cahill v. Sutton [1980] I.R. 269 at 285-286, where Henchy J. stated:
“[T]he absence of a prejudice or injury peculiar to the challenger might be overlooked, in the discretion of the court, if the impugned provision is directed at or operable against a grouping which includes the challenger, or with whom the challenger may be said to have a common interest – particularly in cases where, because of the nature of the subject matter, it is difficult to segregate those affected from those not affected by the challenged provision.”
Thus, can the Plaintiff herein assert the rights of its members, as distinct from members of the public in general? In order for it to so do, the Plaintiff must have a “common interest” in the subject matter. From C.I.F. v. Dublin City Council it might be suggested that if that interest arises merely through its members, the action should be taken in their name, rather than in the company’s. However, where an independent interest arises, a different question also arises. How closely are the rights asserted by the company concommitant with those of its members? If closely related, the company should be allowed to litigate those issues. However, if they are unrelated or only losely related, it is argued that the company should not be able to assert the interests of its members, since it would clearly not be best placed to litigate those issues.
43. A more flexible approach may also be necessary where questions of European law are raised. The CoJ noted as far back as 1963 that:
“The European Economic Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty. … [T]he Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the instutions. Natural and legal persons are thus protected against the application to them of general measures which they cannot contest directly before the Court by reason of the special conditions of admissibibility laid down… Where the Community institutions are responsible for the administrative implementation of such measures, natural and legal persons may bring a direct action before the Court against the implementing measures which are addressed to them or which are of direct and individual concern to them and, in support of such an action, plead the illegality of the general measure on which they are based. Where implementation is a matter for the national authorities, such persons may plead the invalidity of general measures before the national Courts and can cause the latter to request the Court of Justice for preliminary ruling.” (Plaumann & T Co. v. Commission [1963] ECR 95 at para. 23)
Considering this extract, Cooke J., a former member of the Court of First Instance and now a member of the High Court of Ireland, noted when speaking extra judicially, in October 2005:
“Membership of the Union involves radical transfer of regulatory competence to the organs of the Community from the Member states. What the European Court is saying in this judgment is that the far-reaching effects of this hand-over of power to the institutions is balanced by the guarantee that the legal order of the Treaty will protect the individual against the excessive and oppressive exercise of that power in a manner which is incompatible with superior rules of law and of fundamental human rights which the European Court will imply into the legal Order of the Community for the purpose.”
44. The continuing development by the CoJ of the principles of effective protection of rights derived from Community law in national courts can be seen in a number of cases; the first being Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651. The Court in Verholen & Ors. v. Sociale Verzekeringsbank Amsterdam [1991] ECR I-3757 noted at para. 24:
“While it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection … and the application of national legislation cannot render virtually impossible the exercise of the rights conferred by Community legislation.”
The Court, more recently, in Unibet (London) Ltd & Unibet (Int’l) Ltd v. Justitiekanslern [2007] ECR I-2271 noted at paras. 37 – 45 that:
“[A]ccording to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms … and which has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1).
Under the principle of cooperation laid down in Article 10 EC, it is for the Member States to ensure judicial protection of an individual’s rights under Community law. … It is also to be noted that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law. … Although the EC Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Community Court, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. … It would be otherwise only if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under Community law. … Thus, while it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection. … In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)…
Moreover, it is for the national courts to interpret the procedural rules governing actions brought before them, such as the requirement for there to be a specific legal relationship between the applicant and the State, in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective, referred to at paragraph 37 above, of ensuring effective judicial protection of an individual’s rights under Community law.”
45. In summary, the Court held that the principle of effective judicial protection is a general principle of Community law, which flowed from the common traditions of the Member States, and the Member States must ensure judicial protection of an individuals rights under Community law. National procedural rules must therefore not undermine this rightto effective judicial protection.
46. It is therefore clear that where issues of EU law arise in litigation, the Courts may be required to take a more liberal approach to the issue of standing so that a person’s rightsthereunder are not unduly hampered or frustrated. The rules on standing should be interpreted in a way which avoid making it “virtually impossible”, or “excessively difficult”, or which impedes or makes “unduly difficult”, the capacity of a litigant to challenge EU measures of general application under Art. 267 TFEU (see also Van Schijnel v. SPF [1995] ECR I-4705, para. 17; Amministrazione delle Finanze v. San Giogio [1983] ECR 3595, para. 14). That is not to say that where questions of EU law are raised and a preliminary reference requested, the Court is automatically precluded from refusing a plaintiff standing. However, as was the case with regards to the power to grant interim relief in The Queen v. Secretary of State for Transport, ex parte Factortame Ltd & Ors. [1990] ECR I-2433, if the Court would be otherwise minded to allow standing in relation to the questions raised, but for a strict application of the national rules on locus standi, the Court should nonetheless grant standing where to do otherwise would render the plaintiff’s Community rightseffectively unenforceable.
47. In relation to the foregoing I respectfully agree with the view of Gilligan J. in The Irish Penal Reform Trust Ltd. & Ors. v. The Governor of Mountjoy Prison & Ors. [2005] IEHC 305, that:
“[W]hether or not SPUC v. Coogan was indeed restricted to the right to present argument on behalf of the unborn child is not wholly relevant to the present case. The simple fact is that Cahill v. Sutton allows, in plain terms, for the relaxation of the personal standing rules where those prejudiced may not be in a position to adequately assert their constitutional rights. It does not restrict this category of persons to the living, the dead or the unborn nor does it give any indication of what category of person may not be in a position to adequately assert their constitutional rights. If a person is incapable of adequately asserting his constitutional rights for whatever reason, I am of the view that Cahill v. Sutton would support a relaxation of the personal standing rules, provided the relevant person or body is genuine, acting in a bona fide manner, and has a defined interest in the matter in question.”
I would add only that the nature, extent, importance and application of the asserted right may be of high relevance in the exercise of the Court’s discretion when dealing with this rule of practice.
48. As can therefore be seen from the above case law, a plaintiff may be granted locus standi where, having regard to the rights in question, it can show either that it has a bona fide concern or interest in the provisions seeking to be impugned, or else that the rights which it seeks to protect are of general importance to society as a whole; this provided the Plaintiff is not a crank, meddlesome or a vexacious litigant. I should say that this latter point was not seriously argued, and I am firmly of the opinion that the Plaintiff herein is not such a litigant.
49. I would emphasise, however, that the Court should keep in mind the tension, on the one hand, between the public interest, as represented by public bodies established by the State, and, on the other, the right of access to the Court to litigate issues relating to whether the public interest is being protected (per Denham J. in Lancefort (No. 2)). Ultimately, the Court has a duty to prevent the unconstitutional abuse of public power, be it through legislation or otherwise. Thus where it is clear that a particular public act could adversely affect the constitutional, European, or Convention rights of a Plaintiff, or indeed society as a whole, a more relaxed approach to standing may be called for in order for the Court to uphold that duty, and vindicate those rights.
The Rights of a Company:-
50. It is obvious that if a plaintiff can show actual or potential infringement of a constitutional right, it must have locus standi. In this context it is therefore necessary to consider which rights, if any, a company, and therefore the Plaintiff herein, may have. If it is possible that these rights may be infringed by the actions of the Defendants, the Plaintiff has standing to challenge such. However, which constitutional and/or Convention rights can be afforded to corporate persons?
51. Some personal rights are clearly inapplicable to a company. Keane J. commented in the High Court in Iarnród Éireann v. Ireland size=”2″ face=”Verdana”> [1996] 3 I.R. 321 that:
“Undoubtedly, some at least of the rights enumerated in Article 40, s 3, sub-s 2 – the right to life and liberty – are of no relevance to corporate bodies and other artificial entities.” (ibid. at 346)
In that case he considered that property rights under Article 40.3 of the Constitution, particularly, were in a different category and therefore capable of being enjoyed by corporate bodies. He noted that there would be:
“[A] spectacular deficiency in the guarantee to every citizen that his or her property rights will be protected against ‘unjust attack’, if such bodies were incapable in law of being regarded as ‘citizens’, at least for the purposes of [Article 40.3].” (ibid. at 345)
It is therefore clear that some constitutional rights may be enjoyed by companies; leaving aside the extent to which they may differ from those rights as enjoyed by human persons.
52. Nonetheless it is necessary to examine the nature of the rights claimed by the Plaintiff in the present case. Broadly speaking, the Plaintiff claims that the retention of digitaldata infringes several rights, in particular:
i) the right to privacy;
ii) the right to family life;
iii) the right to communicate, and the corollary right to privileged communication;
iv) the right to travel, and the attendant right to travel confidentially.
In these regards, the Plaintiff has referred to Article 40.3.2° of the Constitution, Articles 8 and 10 of the ECHR, Articles 7, 8, 11 and 41 CFR, Article 3a TEU and 21 TFEU (formerly Articles 10 and 18 TEC), Article 6(1) and (2) TEU, Articles 7, 8, 11 and 41 of the CFR, and Article 5 TEU (formerly Article 5 TEC) (the principle of proportionality). I shall now endeavour to outine the extent of these rights and consider how and if they may be applied to a corporate person.
Privacy:-
53. As noted, rights of privacy may be derived from a number of sources. In an Irish context, it is well established that a person has a constitutional right to privacy (Kennedy v. Ireland size=”2″ face=”Verdana”> [1987] I.R. 587). Privacy in business transactions was considered by Hanna J. in Caldwell v. Mahon [2007] 3 IR 542 at 548. Reviewing the previous case law “in the context of business transactions conducted through limited liability companies”, Hanna J. was of the opinion that Haughey v. Moriarty [1999] 3 IR 1 was of limited value when “seen against the background of seeking a discovery order of a citizen’s personal bank account.” Nor did he gain much assistance from Hanahoe v. Hussey [1998] 3 IR 69, noting in particular that although it involved a raid on a solicitor’s office, such was lawful, and further, not only did the firm sue, but so did the solicitors personally:
“Therefore, insofar as the focus of the Court was turned upon the ‘invasion’ of the applicant’s privacy, it was done so in the context of the solicitors carrying on their practice as solicitors in premises belonging to them. This they did with all the panoply of confidentiality and security attendant upon such practice, long recognised and protected by the courts.”
54. Ultimately Hanna J. was reluctant to hold that no such right existed, and indeed saw no reason why it should not, but:
“[S]uch a right can only exist at the outer reaches of and the furthest remove from the core personal right to privacy.”
In this regard he adopted with approval the dicta of Ackerman J. in the South African case of Bernstein v. Bester [1996] (4) B.C.L.R. (S.A.) 449, noting that:
“Given the distance at which the applicant’s right to privacy in his business affairs stands from the ‘inviolable core’, such right must become subject to the limitation and exigencies of the common good and they weigh all the more heavily against it, subject at all times to the requirements of constitutional justice and fair procedures.” ([2007] 3 IR 542 at 548-549)
It is therefore clear that even though it may be accepted that there is a right to privacy in business transactions, that right may be limited by the exigencies of the common good, with the threshold for such interference being relative and being case or circumstance specific.
55. However, it is still open to question whether an independent right of privacy exists for the benefit of the company, as distinct from its members. It must be remembered that limited liability companies are legal creations; they are therefore afforded certain privileges, but also have imposed on them certain responsibilities and limitations, e.g., inter alia, filing accounts, director’s and shareholder’s meetings, details of directors, and being amenable to enquiries and investigation under the relevant company legislation. These are, to a greater or lesser extent, all matters open to the public. A private citizen would clearly not be obliged to conduct his business subject to such requirements. Some commentators have suggested that in an Irish constitutional context, the right to privacy is concerned with securing individual autonomy. Such autonomy considerations could not apply to a corporate actor (see O’Neill, “The Constitutional Rights of Companies (2007), Ch. 15).
56. Despite such concerns, I am satisfied, as Hanna J. was, that there must exist a right to privacy in respect of business transactions carried out by corporate bodies. However, this right, given the legal and factual nature of such artificial persons, will inevitably be narrower than that applicable to natural persons. No serious suggestion could be made that regulations which sought annual returns or required the keeping of proper books and accounts would be invalidly interfering with a company’s right to privacy. In contrast, a requirement to divulge trade secrets may be quite a different matter. In general, I am satisfied that such a right to privacy must extend to companies as legal entities, separate and distinct from their members as natural persons. Such entities are an integral part of modern day business. It is therefore paramount that the interests of such legal persons are protected in the Courts. Much of the case law considering a company’s right to privacy is considered in the context of the invasion of its premises, however this is not the only way in which a company’s privacy might be invaded. As I have said, access may be sought to confidential information or research, or to information or documents generated as part of delicate business negotiations. Commerce and industry could not survive if such access was unregulated. It is therefore clear to me that in principle some right of privacy must exist at least over some areas of a company’s activity. Having so decided, it is not necssary to determine where precisely on the spectrum such rights may fall.
57. In European law such a right is readily apparent from Arts. 7 and 8 CFR and Article 8 ECHR. For the sake of clarity it is worthwhile setting out these provisions. Article 7 CFR, headed “Respect for private and family life” provides:
“Everyone has the right to respect for his or her private and family life, home and communications.”
Article 8 CFR, headed “Protection of personal data” states:
“1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. …”
Article 8 ECHR states:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
58. In Hoechst AG v. Commission [1989] ECR 2859, and two companion cases (Dow Benelux NV v. Commission [1989] ECR 3137 and Dow Chemical Iberica SA v. Commission [1989] ECR 3165) the Court of Justice held that corporate privacy protection was a fundamental principle of Community law. However, referring to Art. 8 ECHR, the Court noted that this should not be taken as being a right to inviolability of business premises:
“The protective scope of that article is concerned with the development of man’s personal freedom and may not therefore be extended to business premises. … Nonetheless … any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection againt arbitrary or disproportionate intervention. The need for such protection must be recognised as a general principle of Community law.” ([1989] ECR 2859 at paras. 18 – 19)
59. Subsequently, however, this issue was considered by the European Court of Human Rights (“ECtHR”) in Niemietz v. Germany (1992) 16 EHRR 97. In that case the ECtHR ruled explicitly that the right to respect for private life in Art. 8 ECHR did extend to business premises since:
“to interpret the words ‘private life’ and ‘home’ as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by public authorities (see, for example, Marckx v. Beligium…).”
Nonetheless such a right could be legitimately interfered with under Art. 8(2), and such interference “might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case.”
60. The ECtHR, in Société Colas Est and Others v. France [2002] III-421, reiterated this point, noting that:
“[T]he Convention is a living instrument which must be interpreted in the light of present-day conditions (see, mutatis mutandis, Cossey v. the United Kingdom, judgment of 27 September 1990, Series A no. 184, p. 14, § 35 in fine). As regards the rights secured to companies by the Convention, it should be pointed out that the Court has already recognised a company’s right under Article 41 to compensation for non-pecuniary damage sustained as a result of a violation of Article 6 § 1 of the Convention (see Comingersoll v. Portugal [GC], no. 35382/97, §§ 33-35, ECHR 2000-IV). Building on its dynamic interpretation of the Convention, the Court considers that the time has come to hold that in certain circumstances the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect for a company’s registered office, branches or other business premises (see, mutatis mutandis, Niemietz, cited above, p. 34, § 30).”
61. These cases were later acknowledged by the CoJ in, inter alia, Roquette Frères SA v. Commission [2002] ECR I-9011, which noted that it was now clear from the jurisprudence of the ECtHR that the protections afforded to the family home under Article 8 may apply to business premises, although potentially subject to a greater level of legitimate interference.
62. Despite being supportive of some level of privacy right for corporate persons, it should be noted that the above European case law was primarily concerned with privacy in the context of premises and search and seizures. Whether such rights could therefore be said to extend to the collection of call data is, as a result, open to question. However, I am satisfied that there is recognised in both Irish and European law a right to privacy in business. Admittedly, such a right may be subject to a high level of justified interference, compared with the equivalent rights of natural persons; however for present purposes it is unnecessary to enter into discussion as to the legitimate scope of such rights; it is enough that they exist, and that they may have been infringed. In any event, it is clear that privacy with regards to personal data is explicitly within the contemplation of Art. 8 CFR. I can see no reason why such a right, although possibly more limited, may not apply to companies. Indeed such information may be commercially sensitive. The company would therefore have a great interest in protecting such data. I would thus allow the Plaintiff locus standi to raise issues relating to interference with its rights of privacy, whatever they might ultimately be found to be.
Family and Marital Privacy:-
63. As has been noted, corporate persons, by virtue of their nature, may not be capable of holding certain rights. Although not in the context of companies, by analogy I would note the comments of Henchy J. in Norris v. A.G. [1984] IR 36 at 68, where he found that the plaintiff did not have locus standi since:
“[A]s an irremediably exclusive homosexual, he will never marry. Therefore, he has no standing to argue what would in this case be abstract constitutional rights of married couples.”
Similarly, but in the context of corporate persons, in Malahide Community Council Ltd. v. Fingal County Council [1997] 3 I.R. 383 at 399, in a passage explicitly referred to as obiter, Lynch J. noted that:
“As an artificial body or person lacking the five senses of human persons, it can never experience the pleasure of open spaces, beautiful gardens and woods or the physical satisfaction of sports facilities: it can never be nauseated by foul smells nor deafened by noisy industry or loud and raucous music nor have a cherished view of open spaces obstructed by new buildings.”
64. It is therefore clear that it could not be possible for a corporate person to claim a right to marital privacy; such is obviously absurd, since it is unable to marry, reproduce or have children; it cannot form a family. I cannot therefore see how the Plaintiff could have a sufficient concern and interest in these matters. I would therefore refuse the Plaintiff standing in this regard.
Communication:-
65. That persons have a right to communicate would seem implicit in rights of free speech and freedom of association under Art. 40.6.1° of the Consitution (see e.g. the comments of Barrington J. in The Irish Times v. Ireland size=”2″ face=”Verdana”> [1998] 1 IR 359 at 405; and Attorney General v. Paperlink Ltd. [1984] ILRM 373). However, in the current context it is clear that the alleged breaches of any right to communication are not claimed to be such that the right of the company to communicate is being restricted, rather it is a breach of what has been described as a right to confidential communication.
66. With regards to natural persons such a right has been considered in the context of phone tapping and other communications interception, e.g. e-mail monitoring. In this context, Hamilton P. noted, in Kennedy v. Ireland size=”2″ face=”Verdana”> [1987] I.R. 487 at 593, that there had in that case been:
“[A] deliberate, conscious and unjustifiable interference by the State through its executive organ with the telephonic communications of the plaintiffs and such interference constitutes an infringement of the constitutional rights to privacy of the three plaintiffs.”
67. Such a right to communicate must, I feel, be inextricably linked to notions of privacy. As noted such a right to privacy is not absolute. In particular, it may need to be balanced against the duty of the State to investigate and detect serious crime. Nonetheless, there has been much consideration of the status of evidence collected through such methods. Finlay C.J. in D.P.P. v. Kenny [1990] 2 I.R. 110 at 134 noted that:
“[E]vidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary circumstances which justify the admission of the evidence in its (the court’s) discretion.”
68. Considering physical surveillance undertaken by the Gardaí in relation to certain drug deals, the Court of Criminal Appeal in People (D.P.P.) v. Byrne [2003] 4 I.R. 423 noted that it had “no doubt and no reason to doubt that this was a perfectly proper operation set up on foot of reasonable information and all this was demonstrated by the result.” Nonetheless it is clear that where surveillance is undertaken it must be justified and generally should be targeted. Finlay C.J. in Kane v. Governor of Mountjoy Prison [1988] I.R. 757 at 769 noted that:
“[I]f overt surveillance of the general type proved in this case were applied to an individual without a basis to justify it, it would be objectionable, and I would add, would be clearly unlawful. … [S]uch surveillance is capable of gravely affecting the peace of mind and public reputation of any individual and the courts could not, in my view, accept any general application of such a procedure by the police, but should require where it is put into operation and challenged, a specific adequate justification for it.”
69. Although Kenny and Byrne could be said to relate to physical surveillance, I can see no logical reason why the Court’s comment could not apply mutati mutandis to electronic surveillance. A person has a right not to be unjustifiably surveilled; such is therefore a general right to confidential communication. Given my comments in relation to privacy generally supra, I can see no reason why such a right would not equally apply to corporate persons.
70. Under Art. 8 ECHR “everyone has the right to respect for … his correspondence.” Of course this right may be interfered with, but such must be in accordance with Art. 8(2). As with the Irish jurisprudence, the ECtHR stresses that where surveillance is provided for it must be the subject of “adequate and effective guarantees against abuse” (Malone v. United Kingdom [1984] 7 EHRR 14). The ECtHR in the case of Klass v. Germany (1979-80) 2 EHRR 214 noted that:
“[P]owers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions. … The Court, being aware of the danger such a [telecoms interception] law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.” (ibid. at paras. 42 and 49)
71. It is therefore clear that the interception of telephone conversations without lawful justification or surveillance is in general illegal (see Kennedy v. Ireland size=”2″ face=”Verdana”> [1987] I.R. 587). Although the collection of what might be called “physical” surveillance, is obviously useful, so too may the data associated with telecommunications messages. These data can potentially yield a wealth of information about the user, including, inter alia, who has been called, the duration of conversations, and where calls were made from. Of course technically it is the phone number which is identified, and not the caller; thus I may give you my phone to use; similarly with regards to the “called” phone. The ECtHR considered the question of whether the collection of such data would amount to an interference with Art. 8 ECHR in the case of Copland v. United Kingdom (Case 62617/00, 3rd April 2007) [2007] ECHR 253. The Court rejected the argument by the UK that the fact that there was no actual listening in on the conversations meant that there was no infringement of the claimant’s rights. At paragraph 43 of its judgment the Court recalls that:
“[T]he use of information relating to the date and length of telephone conversation and in particular the numbers dialled can give rise to an issue under Article 8 as such information constitutes an ‘integral element of the communications made by telephone’ (see Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, §84). The mere fact that these data may have been legitimately obtained … is no bar to finding an interference with rights guaranteed under Article 8 (ibid). Moreover, storing of personal data relating to the private life of an individual also falls within the application of Article 8 §1 (see Amann, cited above, §65). Thus, it is irrelevant that the data held … were not disclosed or used against the applicant in disciplinary or other proceedings.
Accordingly, the Court considers that the collection and storage of personal information relating to the applicant’s telephone, as well as her e-mail and internet usage, without her knowledge, amounted to an interference with her right to respect for her private life and correspondence within the meaning of Article 8.”
72. Thus in the context of this application it would appear to me that the storage of communications data, even without use, may be an interference with a person’s rights under Art. 8 ECHR. Therefore I would reject any assertion by the Defendants that it would be necessary for this information to be used before any challenge could be mounted to its collection. It is clear that the retention of such data, prima facie, may be an interference with the Plaintiff’s rights to privacy. In this regard I would draw support from Art. 8 FCR which provides for the protection of personal data. Consequently I would therefore allow the Plaintiff locus standi in this regard. However, I would stress, that is not to say that such interference is not legitimately justified or that the Plaintiff would be ultimately successful in its action; that is, and must be, a matter for the full hearing.
Travel:-
73. The Plaintiff also claims that the actions of the Defendants are an infringement of its rights to travel and, in particular, its right to confidential travel. In State (M) v. Attorney General [1979] I.R. 73 the Court outlined what it perceived to be a citizens right to travel. Having considered Ryan v. Attorney General [1965] IR 294, a seminal case with regards to unenumerated rights, Finlay P. noted:
“I have considered carefully whether there should be any special reason why the learned judge … should have confined to a right to free movement within the State that which might be described ordinarily as a right to travel. … [S]ubject to conditions, acceptable to the State, it appears to me that the citizens of the State may have a right (arising from the Christian and democratic nature of the State — though not enumerated in the Constitution) to avail of such facilities without arbitrary or unjustified interference by the State. … [S]ubject to the obvious conditions which may be required by public order and the common good of the State, a citizen has the right to a passport permitting him or her to avail of such facilities as international agreements existing at any given time afford to the holder of such a passport. To that right there are obvious and justified restrictions, the most common of which being the existence of some undischarged obligation to the State by the person seeking a passport or seeking to use his passport — such as the fact that he has entered into a recognisance to appear before a criminal court for the trial of an offence. … Furthermore, one of the hallmarks which is commonly accepted as dividing States which are categorised as authoritarian from those which are categorised as free and democratic is the inability of the citizens of, or residents in, the former to travel outside their country except at what is usually considered to be the whim of the executive power. Therefore, I have no doubt that a right to travel outside the State in the limited form in which I have already defined it (that is to say, a right to avail of such facilities as apply to the holder of an Irish passport at any given time) is a personal right of each citizen which, on the authority of the decisions to which I have referred, must be considered as being subject to the guarantees provided by Article 40 although not enumerated.” (ibid. at pp. 80 – 81)
74. It is important to note that the Court in considering the right to travel saw it as analogous to a right to a passport. Even if such were in doubt, it would therefore appear that the right to travel is a person’s right which can only be enjoyed by natural persons; a corporation requires no passport. I can see of no real sense in which a company could “travel” in the manner as mentioned. It is true that it may be present in many jurisdictions, but that is not the same thing as travel. At most the movement of companies to and from countries is a matter of establishment. To talk realistically of companies travelling is nonsensical. I would therefore, on similar grounds as with rights of family and martial privacy, conclude that the Plaintiff cannot avail of this right, and thus does not have locus standi to raise it on its own behalf.
75. I should of course briefly also acknowledge the right to travel within the European Union, derived from, inter alia, Arts. 20 and 21 TFEU (formely Arts. 17 and 18 TEU), and confirmed in subsequent case law (see e.g. Baumbast and R. v. Secretary of State for the Home Department [2002] ECR I-7091; Zhu and Chen v. Secretary of State for the Home Department [2004] ECR I-9925; Trojani v. CPAS [2004] ECR I-7573). This right too is not absolute and may be restricted in certain circumstances.
76. In any event, it is not physical travel which is being impeded, it is the confidential nature of the travel which is alleged to be infringed. Unlike a right to communicate, a right to travel will inevitably be more circumscribed. The right to confidential travel must necessarily be split as between national and international travel.
77. With regards to the latter, as Finlay P. noted in State (M) v. Attorney General it must in any event be reliant on international agreements. Pragmatically, States must have an interest, or the capacity to have such an interest, in those who enter their borders. It is therefore not easy to conceive of how a right to confidential international travel could operate in practice. Nonetheless, even should such a right exist it would necessarily be extremely limited.
78. There may be greater force in the argument that there is a right to confidential travel within the State, however I have no doubt that, as with surveillance, such a rightmight be circumscribed, inter alia, in the interests of preventing crime. In any event, I am satisfied that neither of these rights may be invoked by the Plaintiff since, as stated, it is incorporeal and therefore lacks the ability to travel in the sense which is implicit in the right as recognised.
Actio Popularis:-
79. Despite the foregoing, it may nevertheless be possible for the Plaintiff to litigate matters which do not, or cannot, affect it personally and specially in limited circumstances. The seminal case in this regard is Crotty v. An Taoiseach [1987] 1 I.R. 713, which is referred to in detail at para. 31 supra. It is sufficient to recap that Mr. Crotty’s inability to point to any prejudice specific to him personally, as distinct from him as a member of the public, did not deprive him of the necessary standing.
80. However, as noted above, different considerations may apply to limited companies. One of the primary concerns of rules relating to locus standi is to prevent those litigants who are meddlesome, frivolous or vexatious from unduly burdening the Court, and those parties whom are sued. Therefore, cases should be brought primarily by persons who have a particular interest in the subject matter. In striving to achieve this outcome, the Courts have available the deterrent to impose cost orders against the former group, which may include companies with limited liability. However, there can be concern if such litigants are in fact merely straw-men, or straw-companies, behind which the true litigants hide so as to evade any order for costs which might ultimately be made against them. In those circumstances the Court must examine the nature of the company and its purpose, lifting the veil if required, together with the surrounding circumstances of the case, and the rights which it seeks to vindicate.
81. The Supreme Court in S.P.U.C. v. Coogan [1989] 1 I.R. 734 recognised the right of the plaintiff company to litigate to prevent a breach of the Constitution where it had a bona fide concern and interest, with Finlay C.J. noting that:
“To ascertain whether such bona fide concern and interest exists in a particular case it is of special importance to consider the nature of the constitutional right sought to be protected.”
Therein he noted that with regards to the right to life of the unborn there could never be a victim or potential victim who could sue. Thus given that “there can be no question of the plaintiff being an officious or meddlesome intervenient in this matter”, considering that the plaintiff in that case had taken proceedings, which had been successfully brought to conclusion by the Attorney General, and “the particular right which it seeks to protect with its importance to the whole nature of our society”, these facts “constitute sufficient grounds for holding that it is a person with a bona fide concern and interest and accordingly has the necessary legal standing to bring the action.” In this context the learned Chief Justice made it clear that a Company could not, by virtue only of its memorandum and articles of association, meet such criteria.
82. Similarly, Walsh J. therein noted at p. 744 of the report that:
“One of the fundamental political rights of the citizen under the Constitution, indeed one of the most valued of his rights, is that of access to the Court…
He put it further at pp. 746 – 747 of the report:
“It is quite clear from [East Donegal Co-Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317, O’Brien v. Keogh [1972] I.R. 144, Cahill v. Sutton [1980] I.R. 269] and other decisions that even in cases where it is sought to invalidate a legislative provision the Court will, where the circumstances warrant it, permit a person whose personal interest is not directly or indirectly or in the future threatened to maintain proceedings if the circumstances are such that the public interest warrants it. In this context the public interest must be taken in the widest sense.”
83. In Blessington Heritage Trust Limited v. Wicklow County Council and Others [1999] 4 IR 571, McGuinness J. considered the position of a limited company which sought to challenge a grant of planning permission:
“In cases like the instant case it may well be argued, as it was in Lancefort Ltd. v. An Bord Pleanála (Unreported, High Court, Morris., 6th June, 1997), that companies such as the Applicant company have been incorporated simply to afford the true Applicants ‘a shield against an award of costs’ to use the words of the learned Morris J. I have no doubt that this is a relevant factor and one which must cause concern to a developer such as the Notice Party. However, it could also be argued that in cases such as the present the individual member of the public may in practice be denied access to the Courts – or at least have that access made more difficult – by the danger of an award of costs against him in a case where his opponent is a large development company with resources which enable it to pursue lengthy and costly litigation with comparative impunity.” (ibid. at 595)
He notes, see para. 39 supra., that over-reliance may, of course, tip the balance too far in favour of objectors, but ultimately:
“The Court should look at the factual background in each case and, if necessary, maintain the balance by the making of an order for security for costs.”
84. In Lancefort Limited v. An Bord Pleanála and Others (No. 2) [1999] 2 IR 270 at 308, Keane J. felt that:
“The authorities reflect a tension between two principles which the Courts have sought to uphold: ensuring on the one hand, that the enactment of invalid legislation or the adoption of unlawful practices by public bodies, do not escape scrutiny by the Courts because of the absence of indisputably qualified objectors, and, on the other hand, that the critically important remedies provided by the law in these areas are not abused.
In the latter area, the courts have dwelt on occasions on the dangers of giving free rein to cranks and busybodies. But it is to be borne in mind that the citizen who is subsequently seen to have performed a valuable service in, for example, bringing proceedings to challenge the constitutionality of legislation, while exposing himself or herself to an order for costs, may at the outset be regarded by many of his or her fellow citizens as a meddlesome busybody. The need for a reasonably generous approach to the question of standing is particularly obvious in cases where the challenge relates to an enactment of the Oireachtas or an act of the executive which is such a nature as to affect all the citizens equally: see, for example, Crotty v. An Taoiseach [1987] IR 713. But it is also the case that severely restrictive approach to locus standi where the decision of a public body is challenged would defeat the public interest in ensuring that such bodies obey the law.” (Emphasis added)
Keane J. further noted that:
“It is also the case that the requirements of national law as to standing may in some instances have to yield to the paramount obligation on national Courts to uphold the law of the European Union.” (ibid. at 312)
85. Keane J. went on to conclude that a company could have locus standi to bring proceedings even if it was unable to point to any proprietary or economic interest in the impugned decision. He also concluded that a company may not be denied standing merely because it was not in existence at the time of the relevant decision, and that the law:
“[R]ecognises the right of persons associating together for non-profit making or charitable activities to incorporate themselves as limited companies and the fact that they have chosen so to do should not of itself deprive them in every case of locus standi.” (ibid. at 318)
86. Given that the comments made in both Blessington and Lancefort (No. 2) related to planning decisions, it must be the case that they apply with equal, if not greater, force in circumstances where the impugned actions involve constitutional rights and acts of the Oireachtas; indeed it can be seen from the underlined passage above that Keane J. in Lancefort (No. 2) was firmly of the view that a more generous approach to locus standi is merited in such circumstances. I would respectfully agree. So too may the fact that European Union law is at issue be a consideration – in particular, I would note, the rules as to locus standi should not unduly impede possible references to the CoJ; they should not be so restrictive as to effectively deny a plaintiff redress before the Court.
87. However, as was noted in S.P.U.C. v. Coogan the nature of the rights which the Plaintiff seeks to vindicate must, nonetheless, be taken into account. I would also reiterate the comments of Gilligan J. in The Irish Penal Reform Trust Ltd. & Ors. v. The Governor of Mountjoy Prison & Ors. [2005] IEHC 305 (see para. 40 supra.), where he said:
“The simple fact is that Cahill v. Sutton allows, in plain terms, for the relaxation of the personal standing rules where those prejudiced may not be in a position to adequately assert their constitutional rights.”
Conclusions on Locus Standi:-
88. Ultimately as Gilligan J. noted in The Irish Penal Reform Trust Ltd.:
“[T]he approach I take to this matter is primarily one of discretion. I take into account the nature of the I.P.R.T. and the extent of its interest in the issues raised and the remedies which it seeks to achieve and the nature of the relief as sought. I am satisfied that if I were to deny standing to I.P.R.T. those whose interests it represents may not have an effective way of bringing the issues that are involved in these proceedings before the court.”
I too am primarily dealing with the issue of locus standi as one of informed discretion. I have no doubt, given the concerns expressed by the Plaintiff in their submissions, that it is acting bona fides and is neither being a crank, meddlesome or vexious.
89. The Plaintiff is the owner of a mobile phone, and as such can be affected by issues relating to privacy and communications in relation thereto. Such privacy in the carrying out of business transactions, etc., is important for any company. Indeed these rights are not merely important to businesses, but, it must be thought, of great importance to the public at large. There is thus a significant element of public interest concern with regards to the retention of personal telecommunications data, and how this could affect persons’ rightof privacy and communication. Further, as will be considered in relation to security for costs, from a pragmatic point of view, were the Plaintiff debarred from continuing these proceedings it is unlikely that any given mobile communications user, although specifically affected by the impugned legislation, would bring the case; given the costs that would be associated with any such challenge. It is therefore clear that the impugned legislation does in fact have the potential to be, in the words of Finlay C.J. in S.P.U.C. v. Coogan [1989] 1 I.R. 743 of “importance to the whole nature of our society”.
90. I would also add that that the Human Rights Commission has been joined as amicus curiae. It would seem to support the Plaintiff’s contention that this case raises matters of fundamental public importance regarding persons’ human rights. As an independent organisation which has no vested interest in the outcome of this matter, and which was established by statute to, inter alia, “keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights size=”2″ face=”Verdana”>”, the fact that it sought to be included in this matter as a notice party, principally so that should the matter come before the European Courts it would be able to make submissions, to some extent affirms the position taken by the Plaintiff, namely its bona fide interest and concern in seeking to litigate the matter, and supports the proposition that this is a matter of fundamental public importance.
91. In coming to my conclusions, and in light of the case law considered above, I have taken into account:
i) The Plaintiff is a sincere and serious litigant – it is not a vexatious litigant or a crank;
ii) This case raises important constitutional questions;
iii) The impugned provisions affect almost all of the population;
iv) It would be an effective way to bring the action – individual owners of mobile phones would be unlikely to litigate the matter;
v) The Plaintiff’s right of access to the Court, and the Court’s duty to uphold the Constitution and ensure that suspect actions are scrutinised;
vi) The public good which is being sought to be protected.
92. Therefore, for the reasons given above, I grant locus standi to the Plaintiff in relation to alleged infringements, potential or otherwise, of rights to privacy and communication, and having regard to all of the circumstances of the case, including the nature of the Plaintiff company, the Plaintiff should be able to litigate these matters fully; that is both with regards to the infringement of the Plaintiff’s rights as a legal person, and also with regards to natural persons. As stated, the level of interference between these two persons may not be the same. Natural persons may be afforded greater protection of these rights than companies. It would therefore seem to me, pragmatically speaking, that it would be sensible to allow the Plaintiff to advance these arguments in full. Were the Plaintiff only allowed to advance its arguments on the grounds that it would infringe a company’s rights it could leave open the question of whether natural persons’ rights were nevertheless infringed. It must be in the interests of justice and Court time, that such be litigated in circumstances where the Plaintiff is not in reality put at any disadvantage in pleading on behalf of citizens in general.
93. I would reiterate that it is clear that the Plaintiff has, purely in its personal capacity, locus standi with regards to infringements of its rights to privacy and communication. This I would hold even if there were no other greater interests in the matter. However, given that the impugned legislation could have a possible effect on virtually all persons, I would also grant the Plaintiff locus standi to litigate these matters generally as what might be termed an actio popularis.
Security for Costs:
94. The Defendants’ second application was for security for costs against the Plaintiff under s. 390 of the Companies Act 1963.
95. The Defendants state that it is not contested that were they successful in these proceedings the Plaintiff would be unable to discharge their costs. The Plaintiff, which is limited by guarantee, has only eight subscribers, each of whom has acknowledged a liability to contribute to the assets of the company in an amount limited to the sum of €1. Further, the accounts of the Plaintiff, from the most recent accounts, as presented to the Court, for period ended 31st December 2006, show that it had a gross income of €1,606 and administrative expenses of €6,421 resulting in a loss that year of €4,815. The sole asset of the company is cash totalling €435, against a total of €5,250 due to creditors, resulting in a deficit of €4,815.
96. The Defendants assert that they have a bona fide defence in that they deny retention of any mobile telecommunications data related to the Plaintiff, they deny the irrationality, unreasonableness and procedural defects claimed in respect of the directions alleged, and deny any alleged breaches of constitutional or Convention rights. Further, the Defendants invoke the common good, in particular considerations of public policy and public order, and the obligation under the Constitution to ensure that the authority of the State is not undermined. In the alternative, such restrictions as may exist are necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, the prevention of disorder or crime and the protection of the rights and freedoms of others.
97. The Defendants further content that, on the basis of a bona fide defence, once the Court is satisfied as to the Plaintiff’s financial incapacity, the burden shifts to Plaintiff to show that there are “special circumstances” which justify a refusal by the Court to order security for costs. The Defendants deny that such exist in this case.
98. Although not accepting that the onus lies upon it, instead stating that the burden is on the Defendants to persuade the Court that an order should be made, the Plaintiff argues that the Court should exercise its discretion and refuse the order so sought. In this regard it points to the nature of the proceedings, concerning as they do the validity of acts done and measures designed to ensure that data is retained in respect of mobile phone, internet and e-mail communications of all persons who use such services, and thereafter is available for access and use by State Authorities, which in essence the Defendants are in these proceedings. It argues, therefore, that this is a matter of such gravity and importance as to transcend the interests of the parties before the Court and that clarification is required in the interests of the common good.
99. The Plaintiff also claims that, as with the issue of locus standi, national procedural rules should not frustrate a remedy under European law. Thus, given the fact that this case is seeking a Reference to the CoJ on matters relating to the validity of national and Community laws, the Court should be slow to order security for costs where that in itself would have the effect of preventing such a Reference.
100. Ultimately both parties accept that the question of ordering security for costs under section 390 of the Companies Act 1963 (“the 1963 Act”) is a matter of Court discretion, with the Defendants relying on the impecuniousness of the Plaintiff and their raising of a bona fide defence, whereas the Plaintiff heavily asserts the overriding public interest in allowing this case to proceed.
101. I would firstly say in this regard that s. 390 of the 1963 Act does not place an obligation on the Court to grant security for costs merely because the plaintiff company is impecunious and the defendant asserts a bona fide defence. Kingsmill Moore J., considering s. 278 of the Companies Act 1908 which is in almost identical terms as s. 390 of the 1963 Act, in Peppard and Co. Ltd. v. Bogoff [1962] I.R. 180 at 188, made it clear that:
“[T]he section does not make it mandatory to order security for costs in every case where the plaintiff company appears to be unable to pay the costs of a successful defendant, but that there still remains a discretion in the Court which may be exercised in special circumstances.”
In that case the Court found such special circumstances on the grounds that, on the plaintiff’s case, any impecuniousness may have been due to the wrongs of the defendant, and secondly that there was a co-plaintiff who was a natural person resident in the jurisdiction who could be fixed with costs in the event that the defendant won.
102. It now falls to consider what “circumstances” may be “special” so as to entitle an impecunious plaintiff company to proceed without having to give security for costs.
103. Although pleaded in the parties’ submissions, no argument was advanced during the hearing in relation to the delay of the Defendants in bringing this application. Nonetheless I would briefly comment in this regard. I would agree with Kingsmill Moore J. in Peppard & Co. v. Bogoff (ibid.) that delay, unless it is inordinate and culpable, does not weigh greatly against the defendant in an application for security for costs (S.E.E. Company Ltd. v. Pubic Lighting Services [1987] ILRM 255 and Beauross Ltd. v. Kennedy (Unreported, High Court, Morris J., 18th October 1995) considered); although of course in some circumstances delay can be a significant factor in refusing such an application (see for example Dublin International Arena Limited v. Campus Stadium Ireland Developments Ltd. [2008] 1 ILRM 496). I feel that the former is the case here, and although it may be of some relevance, my decision is not based on any findings in relation to delay, given that it was not properly advanced at the hearing.
104. One of the recognised “special circumstances” which a Court may take into account in refusing an order for security for costs is that the case involves questions of fundamental public importance. Morris J. in Lancefort Ltd. v. An Bord Pleanála & Ors [1998] 2 IR 511 at 516 in this regard notes:
“I have considered the Supreme Court authorities in Midland Bank Ltd v. Crossley-Cooke [1969] I.R. 56 and Fallon v. An Bord Pleanála [1992] 2 I.R. 380. I consider in the context of the applicant’s opposition to the application these are relevant authorities and in particular that part of the judgment of the Chief Justice where he says at p. 384:
‘The second mandatory condition, as it were, laid down in the judgment [in Midland Bank Ltd. v. Crossley-Cooke][sic.] is that the Court should not ordinarily entertain an application for security for costs if it is satisfied that the question at issue in the case is a question of law of public importance…’”
Nonetheless Morris J. concluded that:
“I am of the view that while a challenge to the constitutionality of a section which permits An Bord Pleanála to materially contravene a development plan must be regarded as of importance, I am unable to conclude that the point is of such gravity and importance that it transcends the interest and considerations of the parties actually before the court.”
105. The above decision of Morris J. was considered by Laffoy J. in Villiage Residents Association Ltd. v. An Bord Pleanála (No. 2) [2000] 2 IR 321 at 333 where she stated:
“It is well settled that the Supreme Court should not ordinarily entertain an application for security for costs on an appeal to that court if it is satisfied that the question at issue in the case is a question of law of public importance (per Finlay C.J. in Fallon v. An Bord Pleanála [1992] 2.I.R. 380 at p. 384)… I am of the view that it is appropriate in this case to consider whether a question of law of public importance exists, as Morris J., as he then was, did on the application for security in Lancefort Ltd. v. An Bord Pleanála [1998] 2 IR 511. However, for the reasons outlined earlier for rejecting the applicant’s contention that this case raises an issue of general public importance, I consider that it does not raise a question of law of public importance. For the same reasons I am of the view that the criteria for determining whether a question of law of public importance exists which can be extrapolated from the judgment of Morris J. in Lancefort Ltd. v. An Bord Pleanála [1998] 2 IR 511 – whether the point is of such gravity and importance as to transcend the interests of the parties actually before the court and whether it is in the interests of the common good that the law be clarified so as to enable it to be administered not only in the instant case but in future cases also – are not met.” (Emphasis added)
I would respectfully agree with both Morris and Laffoy JJ. in relation to the above statements of law, and with their conclusions in those cases.
106. It has been advanced, in a similar way as was advanced in relation to locus standi (see para. 28 supra.), that the European element of this case should weigh against the granting of security for costs in circumstances where the granting of such would deny the applicant effective redress. I agree with the Plaintiff that this is a factor which I should take into account. However, I also concur with and note the statement of Denham J., in Dublin International Arena Limited v. Campus Stadium Ireland Developments Ltd. [2008] 1 ILRM 496 at paragraph 24, that the involvement of EC Directives “[does] not preclude an application for security for costs.” It is therefore a relevant factor, to the extent that security for costs should not unduly restrict access to judicial remedy, but it could not in my opinion, in and of itself, constitute a “special circumstance”, such that it would be determinative of the matter without more.
107. Finally, with regards to the onus of proof, I would endorse the views of Finlay C.J. in Jack O’Toole Ltd. v. McEoin Kelly Associates [1986] I.R. 277 where at 283 he held that:
“It is clear that there is no presumption, either in favour of the making of an order for security for costs or against it, but I am satisfied that where it is established or conceded … that a limited liability company which is a plaintiff would be unable to meet the costs of a successful defendant, that if the plaintiff company seeks to avoid an order for security for costs it must, as a matter of onus of proof, establish to the satisfaction of the judge the special circumstances which would justify the refusal of an order.”
108. Although the Court Lancefort Ltd. v. An Bord Pleanála [1999] 2 IR 270 considered that the granting of security for costs might be a way of redressing any imbalance between the parties where a company seeks to litigate rights, I do not consider that this should be the case here. Having regard to the foregoing, I am satisfied, as stated with regards to locus standi, that the matters pleaded in this case do raise issues of significant public importance, which are of “such gravity and importance as to transcend the interests of the parties” and “it is in the interests of the common good that the law be clarified so as to enable it to be administered not only in the instant case but in future cases.” Given the rapid advance of current technology it is of great importance to define the legitimate legal limits of modern surveillance techniques used by governments, in particular with regard to telecommunications data retention; without sufficient legal safeguards the potential for abuse and unwarranted invasion of privacy is obvious. Its effect on persons, without their knowledge or consent, also raises important questions indicative of a prima facie interference with all citizens’ rights to privacy and communication (Copland v. United Kingdom considered). That is not to say that this is the case here, but the potential is in my opinion so great that a closer scrutiny of the relevant legislation is certainly merited with regards to its potential interference with important and fundamental rights of persons, both natural and legal. I would therefore refuse the Defendants’ application for security for costs on the above grounds.
Article 267 of TFEU Reference:
109. The Plaintiff has brought a motion calling for a Reference to the CoJ under Article 267 of TFEU. The questions to be asked all relate to the validity of Directive 2006/24/EC, in particular with rights under the EU and EC Treaties, the CFR and the ECHR. Questions relating to whether the Directive was issued under the appropriate Treaty heading were live matters at the time of the hearing as the Irish Government was then involved in ongoing litigation in the CoJ on this point. Since the hearing, the CoJ has ruled against the Irish government on the issue (Ireland v. European Parliament and Council of the European Union (Case C-301/06) (delivered on the 10th February 2009)). The Court found that Directive 2006/24/EC was properly enacted under Art. 95 TEC, since it was apparent that differences between national rules adopted for the retention of data were liable to have a foreseeable direct impact on the functioning of the internal market which would become more serious over time. Further, the provisions of the Directive are essentially limited to the activities of service providers and do no not govern access to data, or its use by police or judicial authorities. However, the CoJ expressly stated that the action related solely to the choice of legal basis for the Directive, and “not to any possible infringement of fundamental rights arising from interference with the exercise of the right to privacy…” (ibid. at para. 57).
110. The Plaintiff notes that there is a complete discretion, under Article 267(2), for a judge to refer a question when he considers that a decision on it is necessary to enable it to give judgment. However in this case the Plaintiff also seeks to ground its application under Article 267(3), which states:
“Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decision there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice” (emphasis added)
The Plaintiff argues that where a question of the validity Community law is raised the national court must make a reference since there is no effective judicial remedy under national law because a national judge may not declare a Community instrument invalid (Foto-Frost v. Hamptzollant Lübeck-Ost (Case 314/85) [1987] ECR 4199).
111. Attention is drawn to the exceptions to the requirement to make a Reference. These are that, firstly, the matter is not required in order for the national court to rule on the matter case (see Weinand Meilickev. ADV/ORGA F.A. Meyer AG [1992] ECR I-4871; Corsica Ferries Italia Slr v. Corpo dei Piloti del Porto di Genova [1994] ECR I-1783; Monin Automobiles-Maison de Deux-Roues [1994] ECR I-195). Secondly the Community law issue is governed by previous authority (see CILFIT; Da Costa en Schaake NV v. Nederlandse Belastingadministratie [1963] ECR 31; Foglia v. Novello II [1981] ECR 3045). Thirdly the application of Community law is so obvious as to leave no doubt to the national court (see CILFIT v. The Minister for Health [1982] ECR 3415). In the Plaintiff’s opinion none of these operate in this case. A useful summary in relation to references to the CoJ can be found in Kelly v National University of Ireland size=”2″ face=”Verdana”> [2008] IEHC 464.
112. The Defendants admit that, in relation to the Article 267 Reference, it is a matter of discretion for the Court, but argues that at this point a Reference would be premature. They say that, in circumstances where the Plaintiff has elected to bring proceedings by way of plenary action, and must therefore provide evidence, including viva voce evidence, to be examined in open court, and where this has yet to be done, there is therefore as of now, no way of evaluating what the final evidential framework will be. What evidence exists is, by definition, one-sided. In this regard reliance is placed upon Irish Creamery Milk Suppliers Association v. Ireland size=”2″ face=”Verdana”> (Joined Cases 36 and 71/80) [1981] ECR 735, where the CoJ stated at paragraph 6 that:
“The need to provide an interpretation of Community law which will be of use to the national court makes it essential … to define the legal context in which the interpretation requested should be placed. From that aspect it might be convenient, in certain circumstances, for the facts in the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court of Justice so as to enable the latter to take cognisance of all the features of fact and of law which may be relevant to the interpretation of Community law which it is called to give.”
Thus where the legal and factual context in the case has yet to be properly defined a Reference at this stage should be refused. The Plaintiff, the Defendants submit, fails to acknowledge that significant factual and national law issues remain to be determined concerning the nature and extent of the fundamental rights directly affected by the provisions of the Directive, as well as the extent, if any, to which any such rights are capable of being enjoyed or invoked by an artificial legal entity.
113. In relation the Article 267 Reference, I am satisfied that there is sufficient information before me to make such a Reference to the CoJ. I do not think that the application is premature; it is possible to define the context of the Reference (Irish Creamery Milk Suppliers Association v. Ireland size=”2″ face=”Verdana”> [1981] ECR 735 considered). This is not a case which requires significant viva voce evidence to properly define the context or issues in the case. It is a challenge to specific legislative provisions which speak for themselves. I am also satisfied that the Reference is required since I am unable to rule on the validity of Community law (see Foto-Frost v. Hamptzollant Lübeck-Ost (Case 314/85) [1987] ECR 4199). I would therefore grant the application for a Reference under Article 267 TFEU.
114. With regards to the questions to be referred I do not propose to deal with those at this juncture. Instead I would invite the parties to submit suggestions, either individually or in the form of agreed questions between them, as to the content and wording of the questions to be referred, taking into account my findings in this decision.
Conclusion:
115. Thus in summary:
i) I grant the Plaintiff locus standi to bring an actio popularis in respect of whether the impugned provisions violate citizens’ rights to privacy and communications, but not with regards to family and marital privacy or travel;
ii) I refuse the Defendants’ motion for security for costs;
iii) I grant the Plaintiff’s motion for a Reference to the Court of Justice under Article 267 TFEU.
Digital Rights Ireland (ECJ)
[2014] EUECJ C-293/12 (8 April 2014) [2015] QB 127, [2014] WLR(D) 164, [2014] EUECJ C-293/12, ECLI:EU:C:2014:238, EU:C:2014:238, [2014] All ER (EC) 775, [2014] 2 All ER (Comm) 1, [2014] 3 WLR 1607, [2015] 1 QB 127, [2014] 3 CMLR 44Judgment
1 These requests for a preliminary ruling concern the validity of Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).
2 The request made by the High Court (Case C-293/12) concerns proceedings between (i) Digital Rights Ireland Ltd. (‘Digital Rights’) and (ii) the Minister for Communications, Marine and Natural Resources, the Minister for Justice, Equality and Law Reform, the Commissioner of the Garda Síochána, Ireland and the Attorney General, regarding the legality of national legislative and administrative measures concerning the retention of data relating to electronic communications.
3 The request made by the Verfassungsgerichtshof (Constitutional Court) (Case C-594/12) concerns constitutional actions brought before that court by the Kärntner Landesregierung (Government of the Province of Carinthia) and by Mr Seitlinger, Mr Tschohl and 11 128 other applicants regarding the compatibility with the Federal Constitutional Law (Bundes-Verfassungsgesetz) of the law transposing Directive 2006/24 into Austrian national law.
Legal context
Directive 95/46/EC
4 The object of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), according to Article 1(1) thereof, is to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with regard to the processing of personal data.
5 As regards the security of processing such data, Article 17(1) of that directive provides:
‘Member States shall provide that the controller must implement appropriate technical and organi[s]ational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected.’
Directive 2002/58/EC
6 The aim of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11, ‘Directive 2002/58), according to Article 1(1) thereof, is to harmonise the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and to confidentiality, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the European Union. According to Article 1(2), the provisions of that directive particularise and complement Directive 95/46 for the purposes mentioned in Article 1(1).
7 As regards the security of data processing, Article 4 of Directive 2002/58 provides:
‘1. The provider of a publicly available electronic communications service must take appropriate technical and organisational measures to safeguard security of its services, if necessary in conjunction with the provider of the public communications network with respect to network security. Having regard to the state of the art and the cost of their implementation, these measures shall ensure a level of security appropriate to the risk presented.
1a. Without prejudice to Directive 95/46/EC, the measures referred to in paragraph 1 shall at least:
– ensure that personal data can be accessed only by authorised personnel for legally authorised purposes,
– protect personal data stored or transmitted against accidental or unlawful destruction, accidental loss or alteration, and unauthorised or unlawful storage, processing, access or disclosure, and,
– ensure the implementation of a security policy with respect to the processing of personal data,
Relevant national authorities shall be able to audit the measures taken by providers of publicly available electronic communication services and to issue recommendations about best practices concerning the level of security which those measures should achieve.
2. In case of a particular risk of a breach of the security of the network, the provider of a publicly available electronic communications service must inform the subscribers concerning such risk and, where the risk lies outside the scope of the measures to be taken by the service provider, of any possible remedies, including an indication of the likely costs involved.’
8 As regards the confidentiality of the communications and of the traffic data, Article 5(1) and (3) of that directive provide:
‘1. Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation. In particular, they shall prohibit listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users, without the consent of the users concerned, except when legally authorised to do so in accordance with Article 15(1). This paragraph shall not prevent technical storage which is necessary for the conveyance of a communication without prejudice to the principle of confidentiality.
…
3. Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.’
9 Article 6(1) of Directive 2002/58 states:
‘Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication without prejudice to paragraphs 2, 3 and 5 of this Article and Article 15(1).’
10 Article 15 of Directive 2002/58 states in paragraph 1:
‘Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.’
Directive 2006/24
11 After having launched a consultation with representatives of law enforcement authorities, the electronic communications industry and data protection experts, on 21 September 2005 the Commission presented an impact assessment of policy options in relation to the rules on the retention of traffic data (‘the impact assessment’). That assessment served as the basis for the drawing up of the proposal for a directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC (COM(2005) 438 final, ‘the proposal for a directive’), also presented on 21 September 2005, which led to the adoption of Directive 2006/24 on the basis of Article 95 EC.
12 Recital 4 in the preamble to Directive 2006/24 states:
‘Article 15(1) of Directive 2002/58/EC sets out the conditions under which Member States may restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of that Directive. Any such restrictions must be necessary, appropriate and proportionate within a democratic society for specific public order purposes, i.e. to safeguard national security (i.e. State security), defence, public security or the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications systems.’
13 According to the first sentence of recital 5 in the preamble to Directive 2006/24, ‘[s]everal Member States have adopted legislation providing for the retention of data by service providers for the prevention, investigation, detection, and prosecution of criminal offences’.
14 Recitals 7 to 11 in the preamble to Directive 2006/24 read as follows:
‘(7) The Conclusions of the Justice and Home Affairs Council of 19 December 2002 underline that, because of the significant growth in the possibilities afforded by electronic communications, data relating to the use of electronic communications are particularly important and therefore a valuable tool in the prevention, investigation, detection and prosecution of criminal offences, in particular organised crime.
(8) The Declaration on Combating Terrorism adopted by the European Council on 25 March 2004 instructed the Council to examine measures for establishing rules on the retention of communications traffic data by service providers.
(9) Under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) [signed in Rome on 4 November 1950], everyone has the right to respect for his private life and his correspondence. Public authorities may interfere with the exercise of that right only in accordance with the law and where necessary in a democratic society, inter alia, in the interests of national security or public safety, for the prevention of disorder or crime, or for the protection of the rights and freedoms of others. Because retention of data has proved to be such a necessary and effective investigative tool for law enforcement in several Member States, and in particular concerning serious matters such as organised crime and terrorism, it is necessary to ensure that retained data are made available to law enforcement authorities for a certain period, subject to the conditions provided for in this Directive. …
(10) On 13 July 2005, the Council reaffirmed in its declaration condemning the terrorist attacks on London the need to adopt common measures on the retention of telecommunications data as soon as possible.
(11) Given the importance of traffic and location data for the investigation, detection, and prosecution of criminal offences, as demonstrated by research and the practical experience of several Member States, there is a need to ensure at European level that data that are generated or processed, in the course of the supply of communications services, by providers of publicly available electronic communications services or of a public communications network are retained for a certain period, subject to the conditions provided for in this Directive.’
15 Recitals 16, 21 and 22 in the preamble to Directive 2006/24 state:
‘(16) The obligations incumbent on service providers concerning measures to ensure data quality, which derive from Article 6 of Directive 95/46/EC, and their obligations concerning measures to ensure confidentiality and security of processing of data, which derive from Articles 16 and 17 of that Directive, apply in full to data being retained within the meaning of this Directive.
(21) Since the objectives of this Directive, namely to harmonise the obligations on providers to retain certain data and to ensure that those data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(22) This Directive respects the fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union. In particular, this Directive, together with Directive 2002/58/EC, seeks to ensure full compliance with citizens’ fundamental rights to respect for private life and communications and to the protection of their personal data, as enshrined in Articles 7 and 8 of the Charter.’
16 Directive 2006/24 lays down the obligation on the providers of publicly available electronic communications services or of public communications networks to retain certain data which are generated or processed by them. In that context, Articles 1 to 9, 11 and 13 of the directive state:
‘Article 1
Subject matter and scope
1. This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.
2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.
Article 2
Definitions
1. For the purpose of this Directive, the definitions in Directive 95/46/EC, in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) …, and in Directive 2002/58/EC shall apply.
2. For the purpose of this Directive:
(a) “data” means traffic data and location data and the related data necessary to identify the subscriber or user;
(b) “user” means any legal entity or natural person using a publicly available electronic communications service, for private or business purposes, without necessarily having subscribed to that service;
(c) “telephone service” means calls (including voice, voicemail and conference and data calls), supplementary services (including call forwarding and call transfer) and messaging and multi-media services (including short message services, enhanced media services and multi-media services);
(d) “user ID” means a unique identifier allocated to persons when they subscribe to or register with an Internet access service or Internet communications service;
(e) “cell ID” means the identity of the cell from which a mobile telephony call originated or in which it terminated;
(f) “unsuccessful call attempt” means a communication where a telephone call has been successfully connected but not answered or there has been a network management intervention.
Article 3
Obligation to retain data
1. By way of derogation from Articles 5, 6 and 9 of Directive 2002/58/EC, Member States shall adopt measures to ensure that the data specified in Article 5 of this Directive are retained in accordance with the provisions thereof, to the extent that those data are generated or processed by providers of publicly available electronic communications services or of a public communications network within their jurisdiction in the process of supplying the communications services concerned.
2. The obligation to retain data provided for in paragraph 1 shall include the retention of the data specified in Article 5 relating to unsuccessful call attempts where those data are generated or processed, and stored (as regards telephony data) or logged (as regards Internet data), by providers of publicly available electronic communications services or of a public communications network within the jurisdiction of the Member State concerned in the process of supplying the communication services concerned. This Directive shall not require data relating to unconnected calls to be retained.
Article 4
Access to data
Member States shall adopt measures to ensure that data retained in accordance with this Directive are provided only to the competent national authorities in specific cases and in accordance with national law. The procedures to be followed and the conditions to be fulfilled in order to gain access to retained data in accordance with necessity and proportionality requirements shall be defined by each Member State in its national law, subject to the relevant provisions of EU law or public international law, and in particular the ECHR as interpreted by the European Court of Human Rights.
Article 5
Categories of data to be retained
1. Member States shall ensure that the following categories of data are retained under this Directive:
(a) data necessary to trace and identify the source of a communication:
(1) concerning fixed network telephony and mobile telephony:
(i) the calling telephone number;
(ii) the name and address of the subscriber or registered user;
(2) concerning Internet access, Internet e-mail and Internet telephony:
(i) the user ID(s) allocated;
(ii) the user ID and telephone number allocated to any communication entering the public telephone network;
(iii) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;
(b) data necessary to identify the destination of a communication:
(1) concerning fixed network telephony and mobile telephony:
(i) the number(s) dialled (the telephone number(s) called), and, in cases involving supplementary services such as call forwarding or call transfer, the number or numbers to which the call is routed;
(ii) the name(s) and address(es) of the subscriber(s) or registered user(s);
(2) concerning Internet e-mail and Internet telephony:
(i) the user ID or telephone number of the intended recipient(s) of an Internet telephony call;
(ii) the name(s) and address(es) of the subscriber(s) or registered user(s) and user ID of the intended recipient of the communication;
(c) data necessary to identify the date, time and duration of a communication:
(1) concerning fixed network telephony and mobile telephony, the date and time of the start and end of the communication;
(2) concerning Internet access, Internet e-mail and Internet telephony:
(i) the date and time of the log-in and log-off of the Internet access service, based on a certain time zone, together with the IP address, whether dynamic or static, allocated by the Internet access service provider to a communication, and the user ID of the subscriber or registered user;
(ii) the date and time of the log-in and log-off of the Internet e-mail service or Internet telephony service, based on a certain time zone;
(d) data necessary to identify the type of communication:
(1) concerning fixed network telephony and mobile telephony: the telephone service used;
(2) concerning Internet e-mail and Internet telephony: the Internet service used;
(e) data necessary to identify users’ communication equipment or what purports to be their equipment:
(1) concerning fixed network telephony, the calling and called telephone numbers;
(2) concerning mobile telephony:
(i) the calling and called telephone numbers;
(ii) the International Mobile Subscriber Identity (IMSI) of the calling party;
(iii) the International Mobile Equipment Identity (IMEI) of the calling party;
(iv) the IMSI of the called party;
(v) the IMEI of the called party;
(vi) in the case of pre-paid anonymous services, the date and time of the initial activation of the service and the location label (Cell ID) from which the service was activated;
3) concerning Internet access, Internet e-mail and Internet telephony:
(i) the calling telephone number for dial-up access;
(ii) the digital subscriber line (DSL) or other end point of the originator of the communication;
(f) data necessary to identify the location of mobile communication equipment:
(1) the location label (Cell ID) at the start of the communication;
(2) data identifying the geographic location of cells by reference to their location labels (Cell ID) during the period for which communications data are retained.
2. No data revealing the content of the communication may be retained pursuant to this Directive.
Article 6
Periods of retention
Member States shall ensure that the categories of data specified in Article 5 are retained for periods of not less than six months and not more than two years from the date of the communication.
Article 7
Data protection and data security
Without prejudice to the provisions adopted pursuant to Directive 95/46/EC and Directive 2002/58/EC, each Member State shall ensure that providers of publicly available electronic communications services or of a public communications network respect, as a minimum, the following data security principles with respect to data retained in accordance with this Directive:
(a) the retained data shall be of the same quality and subject to the same security and protection as those data on the network;
(b) the data shall be subject to appropriate technical and organisational measures to protect the data against accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful storage, processing, access or disclosure;
(c) the data shall be subject to appropriate technical and organisational measures to ensure that they can be accessed by specially authorised personnel only;
and
(d) the data, except those that have been accessed and preserved, shall be destroyed at the end of the period of retention.
Article 8
Storage requirements for retained data
Member States shall ensure that the data specified in Article 5 are retained in accordance with this Directive in such a way that the data retained and any other necessary information relating to such data can be transmitted upon request to the competent authorities without undue delay.
Article 9
Supervisory authority
1. Each Member State shall designate one or more public authorities to be responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to Article 7 regarding the security of the stored data. Those authorities may be the same authorities as those referred to in Article 28 of Directive 95/46/EC.
2. The authorities referred to in paragraph 1 shall act with complete independence in carrying out the monitoring referred to in that paragraph.
…
Article 11
Amendment of Directive 2002/58/EC
The following paragraph shall be inserted in Article 15 of Directive 2002/58/EC:
“1a. Paragraph 1 shall not apply to data specifically required by [Directive 2006/24/EC] to be retained for the purposes referred to in Article 1(1) of that Directive.”
…
Article 13
Remedies, liability and penalties
1. Each Member State shall take the necessary measures to ensure that the national measures implementing Chapter III of Directive 95/46/EC providing for judicial remedies, liability and sanctions are fully implemented with respect to the processing of data under this Directive.
2. Each Member State shall, in particular, take the necessary measures to ensure that any intentional access to, or transfer of, data retained in accordance with this Directive that is not permitted under national law adopted pursuant to this Directive is punishable by penalties, including administrative or criminal penalties, that are effective, proportionate and dissuasive.’
The actions in the main proceedings and the questions referred for a preliminary ruling
Case C-293/12
17 On 11 August 2006, Digital Rights brought an action before the High Court in which it claimed that it owned a mobile phone which had been registered on 3 June 2006 and that it had used that mobile phone since that date. It challenged the legality of national legislative and administrative measures concerning the retention of data relating to electronic communications and asked the national court, in particular, to declare the invalidity of Directive 2006/24 and of Part 7 of the Criminal Justice (Terrorist Offences) Act 2005, which requires telephone communications service providers to retain traffic and location data relating to those providers for a period specified by law in order to prevent, detect, investigate and prosecute crime and safeguard the security of the State.
18 The High Court, considering that it was not able to resolve the questions raised relating to national law unless the validity of Directive 2006/24 had first been examined, decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Is the restriction on the rights of the [p]laintiff in respect of its use of mobile telephony arising from the requirements of Articles 3, 4 … and 6 of Directive 2006/24/EC incompatible with [Article 5(4)] TEU in that it is disproportionate and unnecessary or inappropriate to achieve the legitimate aims of:
(a) Ensuring that certain data are available for the purposes of investigation, detection and prosecution of serious crime?
and/or
b) Ensuring the proper functioning of the internal market of the European Union?
2. Specifically,
(i) Is Directive 2006/24 compatible with the right of citizens to move and reside freely within the territory of the Member States laid down in Article 21 TFEU?
(ii) Is Directive 2006/24 compatible with the right to privacy laid down in Article 7 of the [Charter of Fundamental Rights of the European Union (“the Charter”)] and Article 8 ECHR?
(iii) Is Directive 2006/24 compatible with the right to the protection of personal data laid down in Article 8 of the Charter?
(iv) Is Directive 2006/24 compatible with the right to freedom of expression laid down in Article 11 of the Charter and Article 10 ECHR?
(v) Is Directive 2006/24 compatible with the right to [g]ood [a]dministration laid down in Article 41 of the Charter?
3. To what extent do the Treaties — and specifically the principle of loyal cooperation laid down in [Article 4(3) TEU] — require a national court to inquire into, and assess, the compatibility of the national implementing measures for [Directive 2006/24] with the protections afforded by the [Charter], including Article 7 thereof (as informed by Article 8 of the ECHR)?’
Case C–594/12
19 The origin of the request for a preliminary ruling in Case C-594/12 lies in several actions brought before the Verfassungsgerichtshof by the Kärntner Landesregierung and by Mr Seitlinger, Mr Tschohl and 11 128 other applicants, respectively, seeking the annulment of Paragraph 102a of the 2003 Law on telecommunications (Telekommunikationsgesetz 2003), which was inserted into that 2003 Law by the federal law amending it (Bundesgesetz, mit dem das Telekommunikationsgesetz 2003 — TKG 2003 geändert wird, BGBl I, 27/2011) for the purpose of transposing Directive 2006/24 into Austrian national law. They take the view, inter alia, that Article 102a of the Telekommunikationsgesetz 2003 infringes the fundamental right of individuals to the protection of their data.
20 The Verfassungsgerichtshof wonders, in particular, whether Directive 2006/24 is compatible with the Charter in so far as it allows the storing of many types of data in relation to an unlimited number of persons for a long time. The Verfassungsgerichtshof takes the view that the retention of data affects almost exclusively persons whose conduct in no way justifies the retention of data relating to them. Those persons are exposed to a greater risk that authorities will investigate the data relating to them, become acquainted with the content of those data, find out about their private lives and use those data for multiple purposes, having regard in particular to the unquantifiable number of persons having access to the data for a minimum period of six months. According to the referring court, there are doubts as to whether that directive is able to achieve the objectives which it pursues and as to the proportionality of the interference with the fundamental rights concerned.
21 In those circumstances the Verfassungsgerichtshof decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Concerning the validity of acts of institutions of the European Union:
Are Articles 3 to 9 of [Directive 2006/24] compatible with Articles 7, 8 and 11 of the [Charter]?
2. Concerning the interpretation of the Treaties:
(a) In the light of the explanations relating to Article 8 of the Charter, which, according to Article 52(7) of the Charter, were drawn up as a way of providing guidance in the interpretation of the Charter and to which regard must be given by the Verfassungsgerichtshof, must [Directive 95/46] and Regulation (EC) No 45/2001 of the European Parliament and of the Council [of 18 December 2000] on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [OJ 2001 L 8, p. 1] be taken into account, for the purposes of assessing the permissibility of interference, as being of equal standing to the conditions under Article 8(2) and Article 52(1) of the Charter?
(b) What is the relationship between “Union law”, as referred to in the final sentence of Article 52(3) of the Charter, and the directives in the field of the law on data protection?
(c) In view of the fact that [Directive 95/26] and Regulation … No 45/2001 contain conditions and restrictions with a view to safeguarding the fundamental right to data protection under the Charter, must amendments resulting from subsequent secondary law be taken into account for the purpose of interpreting Article 8 of the Charter?
(d) Having regard to Article 52(4) of the Charter, does it follow from the principle of the preservation of higher levels of protection in Article 53 of the Charter that the limits applicable under the Charter in relation to permissible restrictions must be more narrowly circumscribed by secondary law?
(e) Having regard to Article 52(3) of the Charter, the fifth paragraph in the preamble thereto and the explanations in relation to Article 7 of the Charter, according to which the rightsguaranteed in that article correspond to those guaranteed by Article 8 of the [ECHR], can assistance be derived from the case-law of the European Court of Human Rights for the purpose of interpreting Article 8 of the Charter such as to influence the interpretation of that latter article?’
22 By decision of the President of the Court of 11 June 2013, Cases C-293/12 and C-594/12 were joined for the purposes of the oral procedure and the judgment.
Consideration of the questions referred
The second question, parts (b) to (d), in Case C-293/12 and the first question in Case C-594/12
23 By the second question, parts (b) to (d), in Case C-293/12 and the first question in Case C-594/12, which should be examined together, the referring courts are essentially asking the Court to examine the validity of Directive 2006/24 in the light of Articles 7, 8 and 11 of the Charter.
The relevance of Articles 7, 8 and 11 of the Charter with regard to the question of the validity of Directive 2006/24
24 It follows from Article 1 and recitals 4, 5, 7 to 11, 21 and 22 of Directive 2006/24 that the main objective of that directive is to harmonise Member States’ provisions concerning the retention, by providers of publicly available electronic communications services or of public communications networks, of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the prevention, investigation, detection and prosecution of serious crime, such as organised crime and terrorism, in compliance with the rights laid down in Articles 7 and 8 of the Charter.
25 The obligation, under Article 3 of Directive 2006/24, on providers of publicly available electronic communications services or of public communications networks to retain the data listed in Article 5 of the directive for the purpose of making them accessible, if necessary, to the competent national authorities raises questions relating to respect for private life and communications under Article 7 of the Charter, the protection of personal data under Article 8 of the Charter and respect for freedom of expression under Article 11 of the Charter.
26 In that regard, it should be observed that the data which providers of publicly available electronic communications services or of public communications networks must retain, pursuant to Articles 3 and 5 of Directive 2006/24, include data necessary to trace and identify the source of a communication and its destination, to identify the date, time, duration and type of a communication, to identify users’ communication equipment, and to identify the location of mobile communication equipment, data which consist, inter alia, of the name and address of the subscriber or registered user, the calling telephone number, the number called and an IP address for Internet services. Those data make it possible, in particular, to know the identity of the person with whom a subscriber or registered user has communicated and by what means, and to identify the time of the communication as well as the place from which that communication took place. They also make it possible to know the frequency of the communications of the subscriber or registered user with certain persons during a given period.
27 Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.
28 In such circumstances, even though, as is apparent from Article 1(2) and Article 5(2) of Directive 2006/24, the directive does not permit the retention of the content of the communication or of information consulted using an electronic communications network, it is not inconceivable that the retention of the data in question might have an effect on the use, by subscribers or registered users, of the means of communication covered by that directive and, consequently, on their exercise of the freedom of expression guaranteed by Article 11 of the Charter.
29 The retention of data for the purpose of possible access to them by the competent national authorities, as provided for by Directive 2006/24, directly and specifically affects private life and, consequently, the rights guaranteed by Article 7 of the Charter. Furthermore, such a retention of data also falls under Article 8 of the Charter because it constitutes the processing of personal data within the meaning of that article and, therefore, necessarily has to satisfy the data protection requirements arising from that article (Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert EU:C:2010:662, paragraph 47).
30 Whereas the references for a preliminary ruling in the present cases raise, in particular, the question of principle as to whether or not, in the light of Article 7 of the Charter, the data of subscribers and registered users may be retained, they also concern the question of principle as to whether Directive 2006/24 meets the requirements for the protection of personal data arising from Article 8 of the Charter.
31 In the light of the foregoing considerations, it is appropriate, for the purposes of answering the second question, parts (b) to (d), in Case C-293/12 and the first question in Case C-594/12, to examine the validity of the directive in the light of Articles 7 and 8 of the Charter.
Interference with the rights laid down in Articles 7 and 8 of the Charter
32 By requiring the retention of the data listed in Article 5(1) of Directive 2006/24 and by allowing the competent national authorities to access those data, Directive 2006/24, as the Advocate General has pointed out, in particular, in paragraphs 39 and 40 of his Opinion, derogates from the system of protection of the right to privacy established by Directives 95/46 and 2002/58 with regard to the processing of personal data in the electronic communications sector, directives which provided for the confidentiality of communications and of traffic data as well as the obligation to erase or make those data anonymous where they are no longer needed for the purpose of the transmission of a communication, unless they are necessary for billing purposes and only for as long as so necessary.
33 To establish the existence of an interference with the fundamental right to privacy, it does not matter whether the information on the private lives concerned is sensitive or whether the persons concerned have been inconvenienced in any way (see, to that effect, Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others EU:C:2003:294, paragraph 75).
34 As a result, the obligation imposed by Articles 3 and 6 of Directive 2006/24 on providers of publicly available electronic communications services or of public communications networks to retain, for a certain period, data relating to a person’s private life and to his communications, such as those referred to in Article 5 of the directive, constitutes in itself an interference with the rights guaranteed by Article 7 of the Charter.
35 Furthermore, the access of the competent national authorities to the data constitutes a further interference with that fundamental right (see, as regards Article 8 of the ECHR, Eur. Court H.R., Leander v. Sweden, 26 March 1987, § 48, Series A no 116; Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V; and Weber and Saravia v. Germany (dec.), no. 54934/00, § 79, ECHR 2006-XI). Accordingly, Articles 4 and 8 of Directive 2006/24 laying down rules relating to the access of the competent national authorities to the data also constitute an interference with the rightsguaranteed by Article 7 of the Charter.
36 Likewise, Directive 2006/24 constitutes an interference with the fundamental right to the protection of personal data guaranteed by Article 8 of the Charter because it provides for the processing of personal data.
37 It must be stated that the interference caused by Directive 2006/24 with the fundamental rights laid down in Articles 7 and 8 of the Charter is, as the Advocate General’s Opinion, wide-ranging, and it must be considered to be particularly serious. Furthermore, as the Advocate General has pointed out in paragraphs 52 and 72 of his Opinion, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance.
Justification of the interference with the rights guaranteed by Articles 7 and 8 of the Charter
38 Article 52(1) of the Charter provides that any limitation on the exercise of the rights and freedoms laid down by the Charter must be provided for by law, respect their essence and, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
39 So far as concerns the essence of the fundamental right to privacy and the other rights laid down in Article 7 of the Charter, it must be held that, even though the retention of data required by Directive 2006/24 constitutes a particularly serious interference with those rights, it is not such as to adversely affect the essence of those rights given that, as follows from Article 1(2) of the directive, the directive does not permit the acquisition of knowledge of the content of the electronic communications as such.
40 Nor is that retention of data such as to adversely affect the essence of the fundamental right to the protection of personal data enshrined in Article 8 of the Charter, because Article 7 of Directive 2006/24 provides, in relation to data protection and data security, that, without prejudice to the provisions adopted pursuant to Directives 95/46 and 2002/58, certain principles of data protection and data security must be respected by providers of publicly available electronic communications services or of public communications networks. According to those principles, Member States are to ensure that appropriate technical and organisational measures are adopted against accidental or unlawful destruction, accidental loss or alteration of the data.
41 As regards the question of whether that interference satisfies an objective of general interest, it should be observed that, whilst Directive 2006/24 aims to harmonise Member States’ provisions concerning the obligations of those providers with respect to the retention of certain data which are generated or processed by them, the material objective of that directive is, as follows from Article 1(1) thereof, to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The material objective of that directive is, therefore, to contribute to the fight against serious crime and thus, ultimately, to public security.
42 It is apparent from the case-law of the Court that the fight against international terrorism in order to maintain international peace and security constitutes an objective of general interest (see, to that effect, Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461, paragraph 363, and Cases C-539/10 P and C-550/10 P Al-Aqsa v Council EU:C:2012:711, paragraph 130). The same is true of the fight against serious crime in order to ensure public security (see, to that effect, Case C-145/09 Tsakouridis EU:C:2010:708, paragraphs 46 and 47). Furthermore, it should be noted, in this respect, that Article 6 of the Charter lays down the right of any person not only to liberty, but also to security.
43 In this respect, it is apparent from recital 7 in the preamble to Directive 2006/24 that, because of the significant growth in the possibilities afforded by electronic communications, the Justice and Home Affairs Council of 19 December 2002 concluded that data relating to the use of electronic communications are particularly important and therefore a valuable tool in the prevention of offences and the fight against crime, in particular organised crime.
44 It must therefore be held that the retention of data for the purpose of allowing the competent national authorities to have possible access to those data, as required by Directive 2006/24, genuinely satisfies an objective of general interest.
45 In those circumstances, it is necessary to verify the proportionality of the interference found to exist.
46 In that regard, according to the settled case-law of the Court, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is appropriate and necessary in order to achieve those objectives (see, to that effect, Case C-343/09 Afton Chemical EU:C:2010:419, paragraph 45; Volker und Markus Schecke and Eifert EU:C:2010:662, paragraph 74; Cases C-581/10 and C-629/10 Nelson and Others EU:C:2012:657, paragraph 71; Case C-283/11 Sky Österreich EU:C:2013:28, paragraph 50; and Case C-101/12 Schaible EU:C:2013:661, paragraph 29).
47 With regard to judicial review of compliance with those conditions, where interferences with fundamental rights are at issue, the extent of the EU legislature’s discretion may prove to be limited, depending on a number of factors, including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference (see, by analogy, as regards Article 8 of the ECHR, Eur. Court H.R., S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 102, ECHR 2008-V).
48 In the present case, in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24, the EU legislature’s discretion is reduced, with the result that review of that discretion should be strict.
49 As regards the question of whether the retention of data is appropriate for attaining the objective pursued by Directive 2006/24, it must be held that, having regard to the growing importance of means of electronic communication, data which must be retained pursuant to that directive allow the national authorities which are competent for criminal prosecutions to have additional opportunities to shed light on serious crime and, in this respect, they are therefore a valuable tool for criminal investigations. Consequently, the retention of such data may be considered to be appropriate for attaining the objective pursued by that directive.
50 That assessment cannot be called into question by the fact relied upon in particular by Mr Tschohl and Mr Seitlinger and by the Portuguese Government in their written observations submitted to the Court that there are several methods of electronic communication which do not fall within the scope of Directive 2006/24 or which allow anonymous communication. Whilst, admittedly, that fact is such as to limit the ability of the data retention measure to attain the objective pursued, it is not, however, such as to make that measure inappropriate, as the Advocate General’s Opinion.
51 As regards the necessity for the retention of data required by Directive 2006/24, it must be held that the fight against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques. However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight.
52 So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court’s settled case-law, in any event, that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Case C-473/12 IPI EU:C:2013:715, paragraph 39 and the case-law cited).
53 In that regard, it should be noted that the protection of personal data resulting from the explicit obligation laid down in Article 8(1) of the Charter is especially important for the right to respect for private life enshrined in Article 7 of the Charter.
54 Consequently, the EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data (see, by analogy, as regards Article 8 of the ECHR, Eur. Court H.R., Liberty and Others v. the United Kingdom, 1 July 2008, no. 58243/00, § 62 and 63; Rotaru v. Romania, § 57 to 59, and S. and Marper v. the United Kingdom, § 99).
55 The need for such safeguards is all the greater where, as laid down in Directive 2006/24, personal data are subjected to automatic processing and where there is a significant risk of unlawful access to those data (see, by analogy, as regards Article 8 of the ECHR, S. and Marper v. the United Kingdom, § 103, and M. K. v. France, 18 April 2013, no. 19522/09, § 35).
56 As for the question of whether the interference caused by Directive 2006/24 is limited to what is strictly necessary, it should be observed that, in accordance with Article 3 read in conjunction with Article 5(1) of that directive, the directive requires the retention of all traffic data concerning fixed telephony, mobile telephony, Internet access, Internet e-mail and Internet telephony. It therefore applies to all means of electronic communication, the use of which is very widespread and of growing importance in people’s everyday lives. Furthermore, in accordance with Article 3 of Directive 2006/24, the directive covers all subscribers and registered users. It therefore entails an interference with the fundamental rights of practically the entire European population.
57 In this respect, it must be noted, first, that Directive 2006/24 covers, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.
58 Directive 2006/24 affects, in a comprehensive manner, all persons using electronic communications services, but without the persons whose data are retained being, even indirectly, in a situation which is liable to give rise to criminal prosecutions. It therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Furthermore, it does not provide for any exception, with the result that it applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy.
59 Moreover, whilst seeking to contribute to the fight against serious crime, Directive 2006/24 does not require any relationship between the data whose retention is provided for and a threat to public security and, in particular, it is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to be involved, in one way or another, in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences.
60 Secondly, not only is there a general absence of limits in Directive 2006/24 but Directive 2006/24 also fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, may be considered to be sufficiently serious to justify such an interference. On the contrary, Directive 2006/24 simply refers, in Article 1(1), in a general manner to serious crime, as defined by each Member State in its national law.
61 Furthermore, Directive 2006/24 does not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. Article 4 of the directive, which governs the access of those authorities to the data retained, does not expressly provide that that access and the subsequent use of the data in question must be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto; it merely provides that each Member State is to define the procedures to be followed and the conditions to be fulfilled in order to gain access to the retained data in accordance with necessity and proportionality requirements.
62 In particular, Directive 2006/24 does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued. Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions. Nor does it lay down a specific obligation on Member States designed to establish such limits.
63 Thirdly, so far as concerns the data retention period, Article 6 of Directive 2006/24 requires that those data be retained for a period of at least six months, without any distinction being made between the categories of data set out in Article 5 of that directive on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned.
64 Furthermore, that period is set at between a minimum of 6 months and a maximum of 24 months, but it is not stated that the determination of the period of retention must be based on objective criteria in order to ensure that it is limited to what is strictly necessary.
65 It follows from the above that Directive 2006/24 does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary.
66 Moreover, as far as concerns the rules relating to the security and protection of data retained by providers of publicly available electronic communications services or of public communications networks, it must be held that Directive 2006/24 does not provide for sufficient safeguards, as required by Article 8 of the Charter, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of that data. In the first place, Article 7 of Directive 2006/24 does not lay down rules which are specific and adapted to (i) the vast quantity of data whose retention is required by that directive, (ii) the sensitive nature of that data and (iii) the risk of unlawful access to that data, rules which would serve, in particular, to govern the protection and security of the data in question in a clear and strict manner in order to ensure their full integrity and confidentiality. Furthermore, a specific obligation on Member States to establish such rules has also not been laid down.
67 Article 7 of Directive 2006/24, read in conjunction with Article 4(1) of Directive 2002/58 and the second subparagraph of Article 17(1) of Directive 95/46, does not ensure that a particularly high level of protection and security is applied by those providers by means of technical and organisational measures, but permits those providers in particular to have regard to economic considerations when determining the level of security which they apply, as regards the costs of implementing security measures. In particular, Directive 2006/24 does not ensure the irreversible destruction of the data at the end of the data retention period.
68 In the second place, it should be added that that directive does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data (see, to that effect, Case C-614/10 Commission v Austria EU:C:2012:631, paragraph 37).
69 Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.
70 In those circumstances, there is no need to examine the validity of Directive 2006/24 in the light of Article 11 of the Charter.
71 Consequently, the answer to the second question, parts (b) to (d), in Case C-293/12 and the first question in Case C-594/12 is that Directive 2006/24 is invalid.
The first question and the second question, parts (a) and (e), and the third question in Case C-293/12 and the second question in Case C-594/12
72 It follows from what was held in the previous paragraph that there is no need to answer the first question, the second question, parts (a) and (e), and the third question in Case C-293/12 or the second question in Case C-594/12.
Costs
73 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national courts, the decision on costs is a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is invalid.
[Signatures]
* Languages of the case: English and German.
© European Union
Mc Keogh -v- John Doe 1 & Ors
[2012] IEHC 95 Judgment of Mr Justice Michael Peart delivered on the 22nd January 2012:
Who would have thought when in the dark hours of the 13th November 2011 a young man got out of a taxi in Monkstown without paying the fare, that this would result in another young man, the plaintiff, who was thousands of miles away in Japan on that date, would discover on the 29th December 2011 after his return to this country, that not only had video footage of the first man exiting the taxi been posted on YouTube by the taxi driver in an effort to have his identity revealed, but also that thereafter another person, travelling the information superhighway that is the internet under the pseudonym ‘Daithii4U’, would see that footage and wrongly identify the plaintiff as being the person who had left the taxi without paying the fare, thereby defaming him, and that this zemblanity, the very opposite of serendipity, would see the appearance of a phalanx of at least a dozen lawyers before this Court for seven hours throughout yesterday for a debate of weighty issues, such as the right to privacy, the right to freedom of the press to fairly and accurately report court proceedings, and the right to an effective remedy, the combined costs of which might be sufficient to purchase a decent house in any part of the country? Yet that is what has happened.
By way of background to this unfortunate state of affairs which has undoubtedly led to great upset and distress to the plaintiff himself and his family, I should say that on the 11th January 2012, I heard an ex parte application by the plaintiff for a number of interim orders aimed at achieving an immediate removal from YouTube of the videofootage which has led to the plaintiff being defamed, as well as from any other sites on which it might be viewed, as well as restraining the named defendants and other parties with notice of the making of the orders from publishing material defamatory of the plaintiff on the internet or otherwise, including the video material in question. In addition, I granted what are known now as Norwich Pharmacal orders requiring certain of the named defendants to provide to the plaintiff the identity of the web users who had defamed the plaintiff via their websites so that the plaintiff would be able to take steps against them in order to protect his good name and prevent further publication of material defamatory of him.
I have been informed by Pauline Walley SC for the plaintiff that following the making of those orders on the 11th January 2012, some success has been achieved as there has subsequently been a 95% take down of the material in question. There has apparently been some information provided also in relation to the identity of parties who have posted defamatory material, but I am unclear as to the extent of that information. But for the moment I am not concerned with the extent to which the parties to whom those orders are directed have complied with same. There is no application before this Court in relation to any alleged non-compliance, such as attachment and committal or sequestration of assets.
What is before the Court is an application directed against parties described in the title hereto as Third Parties, and who comprise a number of newspaper proprietors who have reported upon the court proceedings to date, but who were not named as defendants in the original proceedings. They were not served with the order made on the 11th January 2012, and neither were they in court on that date. Being orders of an interim nature only, the Court directed that a Notice of Motion returnable for the 13th January 2012 be served on the defendants, whereby the plaintiff could apply for interlocutory orders in the same terms pending the determination of the substantive proceedings.
In so far as the orders made on the 11th January 2012 are binding on what are described therein as “any third party having notice of the making of the orders”, the plaintiff is contending that the said newspaper proprietors who have reported on the said proceedings are within the meaning of ‘third parties’ for that purpose since they are aware of the making of the orders, and that by naming the plaintiff in their reportage of the court proceedings, and have reported upon the nature of the defamatory material, and in some cases have failed to report the denial by the plaintiff that the taxi fare evader is him and have failed to report this Court’s conclusion that it was satisfied by the plaintiff’s evidence that he was not even in this country on the 13th November 2011 and was not and could not be the man shown exiting the taxi on that date, that they are in breach of the order made by this Court prohibiting the publication or republication, or any other dissemination on the Internet or in hard copy form, of material defamatory of the plaintiff. It has been submitted that the manner in which these parties have reported these proceedings to date has served only to perpetuate the defamation of the plaintiff, and constitutes a breach of the order in that regard.
I should say that the plaintiff at no time sought to institute these proceedings in a way that does not disclose his identity, and did not make any application on the 11th January 2012 that his name should not be disclosed in any reporting of the application or the proceedings. That was not due to any oversight on his part or on the part of his legal team. Indeed, there is something counter-intuitive about the idea that a person who seeks reliefs from the Court aimed at vindicating his good name, by way of damages or otherwise, would seek to do so anonymously.
I should repeat also what I have said on several occasions, both on the 11th January 2012, and on subsequent occasions, that I am completely satisfied from not only the clear evidence of the plaintiff himself, but also from a perusal of his passport, upon which there is stamped incontrovertible evidence of his presence in Japan on the 13th November 2011, that he is not and could not have been the man seen exiting the taxi on that date. Indeed, the taxi driver himself appeared in Court on the 13th January 2012 and confirmed to the Court that the plaintiff was not the man who had failed to pay the fare, and expressed his regret that the placing of the video footage in question had resulted in the plaintiff being wrongly identified as the culprit. I understand that he has also apologised to the plaintiff for what has occurred.
I should add also that the placing of the video on YouTube by the taxi driver did not of itself defame the plaintiff, though it certainly created a risk that a wrong identification might be made by somebody else. It was the wrong naming of the plaintiff by the person travelling under the pseudonym ‘Daithii4U’ which has done the damage to the plaintiff’s reputation.
Nevertheless, this whole unfortunate saga has led to the most appalling stream of vile, nasty, cruel, foul, and vituperative internet chatter and comment on YouTube and on Facebook directed against this entirely innocent plaintiff, and the anonymous authors of which have chosen to believe and assume is the man who did not pay his taxi fare, and who feel free to say what they wish about him, and in language the vulgarity of which offends even the most liberal and broadminded, and which I will not repeat. One can readily understand what motivates the plaintiff to try and put a stop to it. However, this court does not have a magic wand. The damage has already been done, and it is impossible to ‘unring’ the bell that has sounded so loudly. There is a lot of truth in the phrase already used in this case by Rossa Fanning BL for Facebook, and repeated by me a few days ago, namely that “the genie is out of the bottle”. Certainly for my part, I would not wish that phrase to diminish or belittle in any way the gross injustice which has been perpetrated on this plaintiff whose life should not have become so blighted through no fault on his part.
On the present application against the newspapers in question, the plaintiff in his further effort to protect his good name has sought the following reliefs against them:
1. An Order prohibiting the Third Parties identified below, all and or each of them, their servants and or agents and or any other third parties having notice of the said orders from breaching the terms of the Orders of this Honourable Court dated 11th day of January 2012 directing any third party having notice of the making of the Orders of this Honourable Court to take down, disable and to remove, material defamatory of the Plaintiff to include the publication or dissemination of a video clip and accompanying text alleging that the Plaintiff was guilty of taxi fare evasion, theft, dishonesty pending the hearing of the substantive action. The Third parties are as follows:
The Evening Herald
The Sunday Times
The Examiner
The Daily Star
The Irish Independent
The Irish Times
2. An Order prohibiting all third parties, including those listed above, having notice of the making of the Orders of this Honourable Court prohibiting publication of the said material from publishing, republishing, broadcasting and/or disseminating, either on the internet, broadcast or in hard copy publication, materials defamatory of the Plaintiff to include publication or dissemination of a video clip and accompanying text alleging that the Plaintiff was guilty of taxi fare evasion, theft, dishonesty pending the hearing of the substantive action.
3. Further or in the alternative an Order prohibiting the Third parties, all and or each of them, their servants and or agents including those listed above from publishing or republishing or in any way broadcasting or disseminating either on the internet, broadcast or in hard copy publication, material which would identify or tend to identify the Plaintiff as the subject matter of the defamatory allegation that he was guilty of taxi fare evasion, theft or dishonesty pending the hearing of the substantive action.
Those are the reliefs sought in the Notice of Motion served upon the Third Parties. The fact that reliefs are sought in these terms suggests that the plaintiff does not consider that the Notice Parties are already bound by the orders made. I mentioned this to Ms. Walley at the commencement of the hearing of this application. She has responded by suggesting that this Court should in addition, or perhaps as an alternative, declare that the newspapers in question are captured by the order once they have notice of the making of the order and that they are in breach of it, and thereafter make specific orders against them so that specifically they are restrained from reporting the proceedings in any way which identifies the plaintiff and defames him by repeating the material in question.
Ms. Walley has submitted that the plaintiff is entitled both under the Constitution and the European Convention on Human Rights to have his right to privacy and to his good name protected and vindicated by the Court, and that in order to so do, this Court must in order to provide him which an effective remedy, being another right, it is submitted, to which he is entitled under those instruments, dig deep into its inherent jurisdiction in order to fashion a remedy. She has referred to a number of judgments in support of this submission, which is designed to counter the arguments made on behalf of the newspapers in question that not only has the plaintiff no right under law to anonymity in his court proceedings, but that they are entitled under law to report those court proceedings fairly and accurately, including by naming him, and that not only are they not the intended targets of the injunctions made by this court, but even if they are deemed to be, they have not in any way breached them by the manner in which they have reported them.
Time does not permit me at this stage to set forth in detail the passages to which she has referred in support for her submission that the plaintiff must be able to achieve an effective remedy in respect of the serious injustice which he has suffered, but I will refer to the latest authority referred to, namely the judgment of Hogan J. in S (a minor) and others v. Minister for Justice, Equality and Law Reform and others, unreported, High Court, 21st January 2011. That case of course bears no relationship to the facts or subject matter of the present case. It was in the context of a challenge to a deportation order, where an issue arose as to whether the applicant’s right to an effective remedy under Article 13 of the European Convention on Human Rights was infringed by reason of the fact that the common law substantive judicial review rules did not allow or at least did not sufficiently allow the High Court when exercising its supervisory jurisdiction to engage in a merits based review of impugned decisions. In so far as the Court is not permitted by statute to grant a declaration of incompatibility unless it is clear that an applicant has exhausted such domestic remedies as are available, the learned judge addressed the question of whether an effective remedy under domestic law existed by stating, inter alia, the following:
“Do these Applicants have another legal remedy which is adequate and available?
10. As these applicants contend that the existing common law judicial review rules are inadequate to protect their constitutional and ECHR rights, the question arises for the purposes of s. 5(1) of the 2003 Act as to whether Irish law provides another legal remedy for this purpose which is adequate and available. There is, of course, such a remedy available to the applicants, namely, to contend that these common law rules are themselves unconstitutional.
11. Article 34.3.1 of the Constitution provides that the High Court is “invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.”
12. The fact that this Court is given an express constitutional jurisdiction to determine “all matters and questions whether of law or fact” in and of itself ensures that litigants are guaranteed an effective remedy in respect of all justiciable questions. But, of course, the matter does not rest there, since Article 40.3.1 also provides that:
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
13. Article 40.3.2 further provides that:
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”
14. These inter-locking provisions ensure – among many other things – that the State guarantees all litigants that they will have an effective legal remedy so far as it is practicable to do so. Indeed, it would be difficult to conceive of a more extensive guarantee of an effective remedy than the one actually provided by these provisions, given that the State is thereby committed “as far as practicable…..to vindicate” the rights in question.
15. These basic and elementary principles are attested by a wealth of case-law. As early as 1942 this Court held that a provision of the Land Law (Ireland) Act 1881, which sought to ensure that decisions of the Land Commission were immune from judicial review by the High Court was unconstitutional as inconsistent with Article 34.3.1: see Re Loftus Bryan’s Estate [1942] I.R. 185. In Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345, Kenny J. held that a provision of the Courts of Justice Act 1924 which stipulated that actions against Minister required to be authorized by the fiat of the Attorney General was unconstitutional. In Byrne v. Ireland [1972] I.R. 241 the Supreme Court went even further and held that the common law rule whereby the State was immune from suit was inconsistent with Article 40.3.1. Hard on the heels of Byrne v. Ireland came the decision in Meskell v. CIE [1973] I.R. 121, which established that, where necessary, the courts would modify or extend the parameters of existing tort law to enable a litigant to recover damages for a breach of constitutional rights where that existing law did not sufficiently or adequately protect the right in question. The Meskell doctrine has itself spawned significant subsequent case-law, of which important decisions such as Grant v. Roche Products [2008] IESC 35, [2008] 4 IR 679 and Herrity v.Independent Newspapers Ltd. [2008] IEHC 249 are just some contemporary examples. Indeed, while the judgment of Hardiman J. in Grant discusses in considerable detail the importance of the concept of the vindication of rights in Article 40.3.2 in the context of actions in tort, these principles are certainly applicable by analogy to other areas of the law so far as issue of the effectiveness of the remedy is concerned.”
Hogan J. went on to instance a number of occasions on which the Courts have concluded that certain statutory provisions and other rules were unconstitutional on the basis that a party was deprived of an effective remedy, and went on to state that those examples “all share one common theme, namely that the courts will ensure the remedies available to a litigant are effective to protect the rights at issue and that our procedural law (including all legislation restricting or regulating access to the courts) respects basic fairness of procedures and is neither arbitrary or unfair …”.
In reliance upon this statement, it is submitted that an effective remedy for the plaintiff herein can be provided only by the Court requiring of the newspapers in question that in any reporting of these proceedings they report same only in a manner which does not name or otherwise identify the plaintiff, or does not repeat or republish the material complained of in a way which defames the plaintiff.
Ms. Walley is at pains to emphasise that she accepts the entitlement of the newspapers in the public interest to report the proceedings in court in a fair and accurate manner, but submits that while the proceedings themselves are a matter of public interest, and under the Constitution, must as being the conduct of the administration of justice be conducted and heard in public, there is no public interest served by the naming of the plaintiff, who is a private citizen leading a private life, and who is entitled to have his right to privacy under the Constitution protected, particularly in the circumstances of the present case where he has not in any way been responsible for the events which have led to his public identification.
I have heard submissions from Gareth Compton BL for the Sunday Times, Shane English BL for the Irish Daily Star and Irish Examiner, Simon McAleese, solicitor for the Irish Independent and Evening Herald, and Andrew O’Rourke, solicitor for the Irish Times. Rossa Fanning BL for Facebook also made a submission, although, while served with the present motion, no relief is sought therein against his client, and Ms. Walley submitted that he had no standing to make submissions on this motion. I will not treat each of their submissions separately given the time constraints upon me, and I hope I will be forgiven for not setting out these submissions in their entirety for today’s purposes.
Essentially, these parties submit that they were not intended by this court to be covered by the injunctions which were granted, given that their only role has been to report in a fair and accurate manner the proceedings in court, which were held in public and where no reporting restrictions were either applied for or granted. They submit that it is clear that they were not intended to be covered by the injunction, and that the intended targets were ordinary users of the internet and/or service providers who either had published, or facilitated the publication of, the defamatory material, and who might repeat that material or post fresh defamatory material, or facilitate same, but that appropriate, fair and accurate reporting of the proceedings in a newspaper, either in hard copy or electronically could never have been intended to be prohibited in the absence of any reporting restrictions being imposed.
Submissions were also made that in any such reporting they are not obliged because of the injunction, or otherwise, to exercise a discretion not to name or identify the plaintiff, given that the plaintiff named himself as the plaintiff in his proceedings and that proceedings are required under the Constitution to be held in public, unless otherwise provided for by statute. It is submitted that a person such as the plaintiff, no matter how innocent he is in relation to the matters complained of in the proceedings, must be taken as knowing that once he goes to court to protect and vindicate his good name he does so in a way which leads not only to him being identified publicly, including perhaps, as has happened, being photographed and filmed on his way to court, as well as the very things about which he complains being aired publicly, and becoming more widely known than if he had chosen to do nothing about them. They have given other examples of such situations, including in a criminal context where a person is charged with a criminal offence, is remanded on bail pending trial, enjoys a presumption of innocence, yet is photographed on his/her way to the criminal courts to attend trial, and who may well be found not guilty. Such persons do not enjoy any right to anonymity such as that claimed for by this plaintiff.
In support of the submission that a litigant does not have any right to anonymity in relation to court proceedings since justice must be administered in public under the Constitution, these parties have referred to a number of authorities which have stated this in very clear terms even in cases where, like the plaintiff, a party has genuinely believed that his/her right to privacy and good name would be breached if his/her involvement as a party to the proceedings became public knowledge. Again, time doesnot permit me to set forth all the authorities to which I have been referred, but I will refer to the judgment of McCracken J. in Re: Ansbacher (Cayman) Ltd and others [2002] 2 IR. 517. In that case, the learned judge considered in great detail the right to privacy in litigation, noting inter alia that the right to privacy under the Constitution is not an absolute right and stated at p. 529:
“No case has been cited to me in which a right to a good name or a right to privacy can justify anonymity in court proceedings”.
He noted also that a request for such anonymity was expressly refused by Laffoy J. in Roe v. The Blood Transfusion Service Board [1996] 3 IR. 67, and he sets forth her rationale for that refusal including by her statement that “… the public disclosure of the true identities of parties to civil litigation is essential if justice is to be administered in public. In a situation in which the true identity of a plaintiff in a civil action is known to the parties and to the court but is concealed from the public, members of the general public cannot see for themselves that justice is done”.
Having referred to other authorities, McCracken J. concluded as follows:
“The fact that Article 34.1 requires courts to administer justice in public by its very nature requires the attendant publicity, including the identification of parties seeking justice. It is a small price to be paid to ensure the integrity and openness of one of the three organs of the State, namely the judicial process, in which openness is a vital element. It is often said that justice must not be done, but must also be seen to be done, and if this involves innocent parties being brought before the courts in either civil or criminal proceedings, and wrongly accused, that is unfortunate, but is essential for the protection of the entire judicial system. I do not believe I am called upon to consider any hierarchy of rights in the present case, but if I had to do so, I have no hesitation whatever in saying that the right to have justice administered in public far exceeds any right to privacy, confidentiality or a good name.”
I respectfully agree with these statements, and they are supported by Supreme Court judgments to which reference has been made, and which bind this Court.
I note also that when the Oireachtas enacted the Defamation Act, 2009 it did not include any provision conferring a discretion on the courts to hear such proceedings other than in public. It clearly could have done so.
It is a matter of profound regret to me that this entirely innocent plaintiff finds himself in his present predicament whereby his good name has been sullied in the manner in which it has, and where he seeks to remedy that by restraining any reporting of his proceedings which identifies him as the plaintiff, and where this Court must refuse his application for the reliefs sought on the present motion. But I cannot conclude that the facts of this case are so exceptional as to entitle this Court not to follow the law as it has been pronounced at the highest level in this country.
The parties to whom this motion is directed are firstly not parties to whom the order in question was directed for the reason already stated. Their reporting of the proceedings as such is not in any event a breach of the order in question. That is not to say that any newspaper is immune from suit if they publish material which is defamatory of the plaintiff, but the mere reporting of proceedings in which the plaintiff claims against others that he has been defamed does not of itself constitute a repetition of that defamation, provided that it is fair and accurate, and in the event that a newspaper was to infringe that requirement, the plaintiff would have a cause of action in which he could again seek redress in the ordinary way. I am completely satisfied that they were and are entitled to name the plaintiff in their reporting of the proceedings, and that there is no basis on which the plaintiff is entitled to either the reliefs sought in the Notice of Motion as issued, or the alternative declaratory relief urged for through his Counsel’s submission that the newspapers in question have breached the terms of the injunction granted against other named defendants. I am not satisfied by so concluding that the plaintiff is deprived of an effective remedy as guaranteed under the Constitution or under Article 13 of the European Convention on Human Rights.
For these reasons, I refuse the reliefs sought.
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 size=”2″ face=”Verdana”>” 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 Facebookwill 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 size=”2″ face=”Verdana”>”. 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.
Muwema -v- Facebook Ireland Ltd (No.2)
[2017] IEHC 69 JUDGMENT of Mr. Justice Binchy delivered on the 8th day of February , 2017.
1. This decision is supplementary to a decision previously delivered by me in these proceedings on 29th July 2016, the subject of a written judgment dated 23rd August 2016, in which I refused the plaintiff certain orders which would have had the effect of requiring the defendant to take down certain postings concerning the plaintiff, posted by an anonymous source on the defendant’s internet service. One of the reliefs sought by the plaintiff included 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 operating a Facebook page under the name “Tom Voltaire Okwalinga (“TVO”)”, on whose Facebook page the postings were made. In other words the plaintiff applied for a “Norwich Pharmacal” order with the intent of identifying the name of the person responsible for the postings concerning the plaintiff.
2. The defendant choose not to oppose the making of a “Norwich Pharmacal Order” for reasons that I refer to below. For this reason therefore, although refusing the other reliefs applied for by the plaintiff, I indicated in my judgment of 29th July that I would make such an order, and reflected that in my written decision of 23rd August, 2016 However, before that order could be perfected the defendant sought the leave of the Court to introduce new evidence with a view to opposing the making of a “Norwich Pharmacal Order”, notwithstanding that the interlocutory hearing had concluded. That application came before the court on 21st December 2016. It was opposed by the plaintiff.
The New Evidence
3. The new evidence sought to be admitted is set out in an affidavit of Mr. Jack Gilbert, Lead Litigation Counsel of the defendant dated 19th August 2016. In this affidavit, Mr. Gilbert avers that:-
“in my role as lead litigation counsel for Facebook … I receive and review hundreds of legal claims each year, which comprise dozens of requests for Norwich Pharmacal relief or basic subscriber information (“BSI”). Because Facebook is not a publisher of content, its general position is that any complaints regarding content should be directed at the relevant user that posted the content. To that end Facebook generally does not take any position with respect to requests for limited Norwich Pharmacal Order relief. In remaining neutral, Facebook assumes that (1) the content for which BSI is requested is to identify by specific uniform resource locator (“URL”) which is the “address” a person enters into a web browser to locate content on the internet; (2) the requester has made out a prima facie case against the user, evidencing his right to Norwich Pharmacal relief; and (3) the requester follows generally applicable principles of non-party discovery; and (4) that the court is the appropriate arbiter as to whether or not the application is meritorious; a role Facebook is not in a position to fulfil”
4. Mr. Gilbert goes on to explain that when he received the plaintiff’s proceedings herein, he treated with them in the usual way and assumed that Facebook would not have any difficulty in providing such information as is had, relating to the identity and location of the person operating the TVO Facebook page, or the individual hosters thereon. However, after I indicated in 29th July that I was disposed to grant the plaintiff Norwich Pharmacal relief, Mr. Gilbert avers that he informed his colleagues as to the impending requirement to disclose the BSI of the posts referred to in the notice of motion. He was then informed by his colleagues that TVO is a political activist who has been “marked for arrest” by the Ugandan Government. He states that TVO’s Facebook profile appears to have as many as 80,051 followers as of 17th August 2016.
5. He goes on to state that TVO is the author of the posts referred to in the body of the notice of motion herein, but the position is complicated by the fact that the URLs provided by the plaintiff in the schedule to the notice of motion, together with other posts exhibited at exhibit “FM2” to the plaintiff’s affidavit, related to an entirely different Facebook page which also goes by the name of “Tom Voltaire Okwalinga”. On 17th August 2016, that Facebook page had 14,403 followers. He describes this page as the “fake TVO page” as he thinks it likely (although he is not certain) that it is a fake or copycat of the more established TVO profile. Some commentators on the fake TVO page made comments suggesting that this is so. Accordingly, he says, the plaintiff has intermingled the more established TVO profile with the fake TVO page.
6. He goes on to say that he has been informed by Facebook’s head of public policy for Africa, Ms. Okobi that Facebook has in the past “received multiple requests” from Ugandan Government actors and others affiliated with Uganda’s President Museveni to take down contents from TVO’s page, to shut down the page and/or to reveal TVO’s personally identifiable information. He says he is also informed by Ms. Okobi that TVO had been the subject of a number of previous attempts by the Ugandan Government both to censor TVO and to obtain information that would lead to his identification and that attempts have been made to call Facebookbefore Uganda’s Parliament to compel Facebook to produce the information that would facilitate the arrest of the person or persons behind the account. During the course of a phone conversation between Ms. Okobi and a Mr. Godfrey Mutabazi, the Executive Director of Uganda’s Communications Commission, it is alleged that Mr. Mutabazi stated that “TVO was a threat to the Ugandan State and must be turned over and stopped” and Facebook was made aware of the Government’s interest in arresting TVO.
7. Mr. Gilbert further avers that the Ugandan Government has previously arrested and detained at least one person, an information security expert by the name of Mr. Robert Shaka, who was incorrectly presumed to be TVO. He says that the defendant is unaware whether or not there is any immediate threat to the life or liberty of the author of the fake TVO page, but he notes that the content published on that page is also critical of the Ugandan Government and is similar in substance to that of the genuine TVO profile. He surmises therefore, that aside from any indirect threat which may arise due to the apparent association with the genuine TVO profile, the content of the fake TVO page may also have attracted the interest of the Ugandan Government and the author of the fake TVO page may be at risk of arrest and subsequent persecution in his or her own right.
8. He also says that as of September 2015, there were 172 registered complaints of human rights violations by Police Officers with the Ugandan Police Force Professional Standards Unit. He says that Freedom House in its 2015 report ranked Uganda as “not free” due to increased violations of human rights and infringements of the rights to freedom of expression, assembly and association. He exhibits a copy of the 2015 Freedom House report in this regard.
9. He also exhibits a copy of the 2015 US Department of State Human Rights Report on Uganda, in which it is reported that the three most serious human rights problems in Uganda include: lack of respect for the integrity of the person, as demonstrated by unlawful killings, torture, and other abuse of suspects and detainees; restrictions on civil liberties such as freedoms of assembly, expression, the media and association; and violence and discrimination against marginalised groups. The report confirms the existence of “credible” reports that security forces tortured and beat suspects and that the use of excessive force and torture during arrests and other law enforcement operations resulted in casualties. In short, Mr. Gilbert expresses concern that if the defendant is directed to furnish the plaintiff with the BSI of TVO, whether that of the genuine TVO profile or the fake TVO page, this may lead to the identification of the authors of the TVO profile and/or the fake TVO profile (if they are in fact different) and that if their identities are revealed, the life, bodily integrity and liberty of those persons would be placed in jeopardy. Mr. Gilbert acknowledges that it is difficult to evaluate the extent of this threat but says that he now has what he believes to be a well founded fear that the threat is real.
10. The plaintiff originally chose to not reply to this affidavit of Mr. Gilbert on the grounds that it is substantially based on hearsay contained in the exhibits comprising the Freedom House and U.S. Department of State Human Rights Reports of 2015. I indicated however, that I felt it would be better for the plaintiff to reply to the affidavit and adjourned the application to enable the plaintiff to do so, and, if required, to enable the defendant to reply further. That resulted in the delivery of two further affidavits, an affidavit of the plaintiff of 16th January 2017, and an affidavit of a Mr. Nicholas Opiyo, a Ugandan based human rights advocate and lawyer sworn on 18th January. The plaintiff disputes that revealing the identity of TVO will subject him to risks of the kind described by Mr. Gilbert. The plaintiff argues that Ugandans who have taken to Facebook, Twitter and other social media platforms to criticise the Ugandan government have had their rights respected. He identifies a number of individuals of whom he is aware (four in total) who have been openly critical of the government in Uganda and who are all on bail even though they are facing serious charges relating to their activities. He also takes issue with the suggestion in the reports exhibited by Mr. Gilbert that the judiciary are not independent in Uganda. He gives examples of cases involving press and media freedom in which the Ugandan government has been unsuccessful. He also argues that the reports exhibited by Mr. Gilbert are out of date and says that the justice, law and order sector annual performance report of 2015/16 records that the number of reported human rights violations in Uganda reduced by 41% during this period.
11. While accepting that Uganda has challenges relating to the observance of human rights, he says that it is alarmist to paint a picture of unmitigated violations of human rights and lawlessness in Uganda as portrayed by Mr. Gilbert. He says that he has suffered at the hands of the defamatory posts of TVO and that he requires redress whether in Uganda or Ireland, which will be denied to him, unless the defendant is directed to reveal the identity of TVO. He also says that any need to protect TVO against prosecution for his alleged crimes are, first, unmerited and secondly, cannot be done at the expense of the plaintiff.
12. As I indicated above, the affidavit of the plaintiff was responded to by Mr. Nicholas Opiyo by way of affidavit of 18th January 2017. Having regard to the content of this affidavit, both as to the credentials of Mr. Opiyo and as regards the opinion expressed by him in the affidavit, and the reasons for that opinion, it is desirable to set out in full the contents of his affidavit:-
“1. I am the Executive Director of Chapter Four Uganda, a human rights organisation that has been documenting and litigating human rights issues in Uganda for six years. I am also a practicing advocate of the courts of judicature of ten years standing and I have litigated and continue to litigate several high profile human rights cases before the courts in Uganda. Notably, I was the lead attorney (sic) case of Oloka-Onyango & 9 Ors v Attorney General (CONSTITUTIONAL PETITION NO. 08 OF 2014.) [2014] UGCC 14 (1 August 2014)(available at http://www.ulii.org/ug/judgment/constitutional-court/2014/14/). The case successfully challenged before the Constitutional court of Uganda, the Anti-Homosexuality Act, 2014. I was also c-counsel in the case of Karuhanga vAttorney General (CONSTITUTIONAL PETITION NUMBER 0039 OF 2013) [2014] UGCC 13 (4 August 2014) (available at http://uloo.org/ug/judgment/constitutional-court/2014/13/) that successfully challenged the reappointment Uganda Chief justice upon attaining retirement age.
2. I served as Secretary General of the Uganda Law Society (the national bar association) from 2013-2014 and prior to which I was a two term chair (2012 and 2013) of the Uganda Society human right committee, the Committeee in charge of leading the Uganda Law Society’s human rights work.
3. I was the recipient of the prestigious Human Rights Watch 2015 Recipient of the Alison Des Forges Award for Extraordinary Activism an award that celebrates the valour of individuals who put their lives on the line to protect the dignity and rights of others. Human Rights Watch collaborates with these courageous activists create a world in which people live free of violence,discrimination, and oppression.
4. I am an inaugural European Union Sakhavrov Fellow (2016-2017) and I also served as a Visiting Scholar at the Centre for African Studies, Stanford University, California, United States of America, where (sic.) led human rights classes for the undergraduate and post graduate cohort in 2015.
5. I am therefore qualified and have the necessary experience (as an award winning human rights lawyer, activist and advocate) and the knowledge of the facts about the treatment of people critical of the government online or who are suspected of being Tom Okwainga Voltaire (TVO).
6. I have been furnished with a copy of the affidavit sworn by Fred Muwema on 16 January 2017. I have carefully read and understood the contents of the affidavit and make this Affidavit in order to respond to the Affidavit of Mr. Muwema, the content of which I materially disagree with, from facts within my own knowledge.
7. I have defended and continue to defend Shaka Robert, a Uganda online activists registered on Facebook as ‘Maverick Blutaski’ and a former employee of the US Embassy in Uganda, who was on June 8, 2015 accused, arrested and charged on suspicion of being Tom Okwalinga Voltaire (TVO). I say that Shaka Robert was waylaid in the early hours of the morning and under the cover of darkness abducted by non-uniformed security officials. Mr. Robert was driven to the Special Investigations Unit (SIU) of the Uganda Police Force in Kireka, West of Kampala city. I further say that the SIU is a detention facility which is notorious for torture and the cruel and inhumane treatment of suspects. A detailed report of the use of torture in the facility is contained in the Human Rights Watch World Report (available at: https://www.hrw.org/world-report/2013/country-chapters/uganda. I beg to refer to a copy of the said report, upon which, marked with the letters “NO1” I have sworn my name prior to the swearing hereof.
8. I say that the arresting officers did not identify themselves, refused to disclose the reason for the arrest in violation of the provision of the constitution of the Republic of Uganda which requires them to do so. They also denied Mr. Robert access to his family and friends in violation of the provisions of the Constitution of the Republic of Uganda. Upon his arrest, Mr. Robert was stripped of his cell phones and detained incommunicado for more than the constitutionality allowable 48 hours.
9. I was compelled to challenge the incommunicado detention of Mr. Robert before the Nakawa Magistrates Court for being in violation of his rights and the law and the court issued an order for his unconditional release. I further say that the orders of the court were served upon all relevant authorities but they refused to comply with the order. They violated the orders of the court and instead charged Mr. Robert before another court in central Kampala (the Buganda Chief Magistrates Court) of ‘disguising himself as Tom Voltaire Okwalinga (TVO), between 2011 and 2015, wilfully and repeatedly using a computer, with no purpose of legitimate communication, disturbed the right of privacy of President Museveni by posting statements as regards to his health condition on social media, to wit, Facebook’.
10. Mr. Robert applied for bail but was remanded to the Central Prison for a week and afterwards released on a court bail. When he attempted to travel for holidays in December of 2015, he was violently arrested at the Entebbe International Airport and accused of theft, a charge he had never been informed about or summoned over. He was later released in the deep of the night.
11. Mr. Robert continued to live under fear and received several anonymous threats to his life by phone and has lived in hiding since then. He has issued proceedings challenging his trial, entitled “SHAKA ROBERT AND ANDREW KARAMAGI VS. AG Constitutional Petition No….of 2016” before the Constitutional Court of Uganda and it is yet to be heard.
12. I know that the Ugandan Police have been looking for TVO for a very long time and, as demonstrated by the case of Mr. Robert, when they arrest anyone on suspicion of being TVO, the arrested persons are subject to extrme abuse of their rights by the police, often in violation of the orders of the court.
13. I have also observed the use of trumped up charges to intimidate those critical of the person of the President of Uganda. For instance, Rtd. Col. Dr. Kizza Besigye, the main rival to the President has been arrested and charged in court over one hundred (100) times of trumped up charges. He has been charged with rape, treason and subjected to public humiliation and beating by the security agents. He spends most of his time traversing the country to answer a litany of charges. He has not been convicted of any of the charges. In describing charges of rape against him, a Hih Court Judge noted in the case of Uganda v Kizza Besigye that ‘the evidence before this court is inadequate even to prove a debt, impotent to deprive of a civil right, ridiculous for convicting of the pettiest offence scandalous if brought forward to support a charge of any grave character, monstrous if to ruin the honour of a man who has offered him as a candidate for the highest office of this country’. A transcribed copy of the judgment is available at http://www.newvisison.co.ug/new vision/news/1153065/katusi-acquits-besigye. I beg to refer to a copy of the said report, upon which, marked with the letters “NO2” I have sworn my name prior to the swearing hereof.
14. I say and believe that if the identity of TVO if disclosed, he or she will be subjected to similar or worse abuse by the security agents in Uganda. He is likely t suffer torture, cruel, inhumane treatment in the hands of the security agents in the manner or worse that Mr. Robert has suffered. I further say that, as demonstrated in the case cited above, the criminal justice system has been used to abuse the rights of people critical of the state.
15. I say that such abuse of the criminal justice system is more nuanced than initiation of cases and their results. To fully appreciate the abuse in the justice system, one must look at the entire process from the manner/conduct of investigation, the motivations of such investigations and the prosecution of the cases. It is clear to my mind that taken as a whole, the justice system is manipulated and used to abuse rights in cases of those most critical of the President of Uganda…”
Submissions of the Defendant on the application to admit new evidence
13. In applying to the court to introduce new evidence, the defendant relied upon the decision of Clarke J. in the matter of McInerney Homes Limited [2011] IEHC 25. In that case Clarke J. said at paragraph 3.12:
“However, where the basis for seeking that the court revisit its judgment is to be found in the proposed presentation of additional evidence or materials, then it seems to me that it would be inappropriate for the court to go down that road without applying, at least in general terms, a test similar to that which an appellate court would apply in deciding whether to admit new evidence at an appeal. In those circumstances it seems to me that the new materials must be such that same would probably have an important influence on the result of the case, even if not decisive, and be credible. In addition, such new evidence will not ordinarily be permitted to be relied on if the relevant evidence could, with reasonable diligence, have been put before the court at the trial.”
14. Earlier in the same decision, at paragraph 3.1 Clarke J. stressed the importance of the timing of an application of this kind:
“It is important to commence a review of the court’s jurisdiction by noting that the timing of an application which is designed to seek to go behind a ruling of the court is a matter of some considerable importance. Where proceedings have come to their natural conclusion, whether in a court of first instance or, in the event of an appeal, as a result of a determination of the court which has the final appellate role in the circumstances of the case, then it can, at least in litigation involving the rights and obligations of parties, be said that the ruling of the courts is a final ruling which can only be displaced in very limited circumstances …
However, the situation is not quite the same when the proceedings are still alive in the sense that a valid appeal remains before an appellate court and has not yet been finally determined. In those circumstances the courts have recognised a jurisdiction to admit additional or new evidence subject to stringent conditions which have been the subject of definitive judicial ruling. See, for example, the cases of Lynagh v Mackin [1970] I.R. 180 and Murphy v. Minister for Defence [1991] 2 I.R. 161. The appellate court also has a discretion, to be exercised sparingly, to allow new arguments to be raised.”
15. In McInerney, Clarke J. was being asked to revisit his decision to refuse to approve a scheme of arrangement proposed by the examiner appointed to the affairs of the applicant. However, he decided against making any formal order on the date on which he delivered his judgment in order to allow counsel to make submissions as to any further or other orders or measures that might be required in the circumstances of the case, and accordingly he adjourned the matter for such purpose for a period of one week. When the matter came back before him one week later, the applicant invited the court to revisit its judgment on the basis of circumstances which had not been drawn to the attention of the court and which the applicant said it was unaware of at the time of the hearing of the application. In the event, Clarke J. found that there was a reasonable possibility that the matters, which had not been drawn to the attention of the court could have been material to the court’s consideration of the application and that both parties bore some responsibility for that state of affairs. He found however that there was at least a basis for the applicant not bringing forward information before the court and that in those circumstances the balance of justice required that the matter be re-opened.
16. It is submitted by Mr. Fanning S.C. on behalf of the defendant that the evidence now brought forward by Mr. Gilbert is important, credible and may influence the outcome of the application for Norwich Pharmacal Relief. It is acknowledged that the information set out in the affidavit of Mr. Gilbert was available to the defendant at all times up to and including the date on which the plaintiff’s application for interlocutory relief was heard, but at that time Mr. Gilbert had no reason to believe that the defendant would do anything other than follow its normal procedures in such applications i.e. that it would not oppose an application for a Norwich Pharmacal Order and would comply with the same if directed by the court to do so. It was only when Mr. Gilbert went to do just that in anticipation of a perfected court order directing him to do so, that he became aware from one of his colleagues of the possibility that the revelation of the identity of TVO could pose a serious risk to his/her safety. Having become aware of this, the defendant considered that it should apply to the Court to introduce this new evidence before any order is perfected.
Submissions of plaintiff on the application to admit new evidence
17. Mr. Walker, B.L., on behalf of the plaintiff agreed that the test for admitting new evidence is that set out by Clarke J. in McInerney. He submitted however, that the evidence which the defendant now wishes to bring before the Court has at all times been in the possession of the defendant, and this was not so in McInerney. He submitted that the only reason that this material was not previously brought before the Court was inadvertence on the part of the defendant. He says that while Mr. Gilbert claims that it was only when he received my written judgment of 23rd August 2016, that he realised, following consultation with his colleagues, the implications that a Norwich Pharmacal order would have in this case, the fact is that he was aware of the decision of the Court from 29th July and moreover, the defendant had in principle agreed to the granting of a Norwich Pharmacal order by not opposing the application for the same in the first place. Counsel for the plaintiff also explained that the plaintiff did not put in a replying affidavit to Mr. Gilbert’s affidavit because to a large extent Mr. Gilbert’s affidavit is taken up with hearsay evidence concerning, in particular, the human rights record of Uganda.
18. Mr. Walker further submits that had the defendant disclosed that it was previously aware of the activities of TVO, by reason of the requests received from the Ugandan Government, then the defendant might not have been able to resist successfully the application for interlocutory relief on the grounds that it did i.e. s. 27 of the Defamation Act 2009. Had the defendant disclosed its awareness of the activities of TVO at the hearing of the original application, the plaintiff would have argued that the defendant did not act with reasonable care and this would have influenced the Court in its attitude towards the plaintiff’s application for take down orders.
Decision on application to admit new evidence.
19. It can hardly be disputed that the evidence the subject of this application could have had an important influence on the outcome of an application for Norwich Pharmacal Relief. Notwithstanding the plaintiff’s submissions that much of what was said by Mr. Gilbert is grounded upon hearsay, it is sufficient to raise serious concerns about the possible impact of a Norwich Pharmacal Order upon the safety and welfare of TVO, if identified. Any shortcomings in the application arising by reason of the hearsay nature of much of what Mr. Gilbert had to say have been squarely addressed through the affidavit of Mr. Opiyo. The application itself was made as quickly as possible by the defendant as soon as it became aware of the potential for the threat to the safety of TVO, and before the perfection of any court order, and therefore even before the possibility of appeal arises.
20. The decision that I delivered on 29th July if it remains unchanged, remains open to appeal and as in McInerney the application to admit new evidence in this case is made even earlier in the process than at appellate stage. The proceedings are not the subject of an appeal because the final order of this court has not yet been perfected, as was also the case in McInerney.
21. The only aspect of the test articulated by Clarke J. in McInerney Homes that the defendant does not meet on this application, is that the new evidence was always available to the defendant and could have been brought before the Court at the time the plaintiff’s application for interlocutory relief was heard. Mr. Gilbert has given a perfectly credible explanation as to how this occurred. It may be observed that the mere fact that an applicant to admit new evidence did not identify the evidence sought to be adduced because it was following its normal administrative procedures would be unlikely to be accepted by a court as a good reason for not identifying the evidence sooner. In this case, however, it is the nature of the new evidence and the possible consequences of refusing to admit it into evidence that requires a different approach. Where an arguable case has been made out that failure to admit new evidence could result in a threat to the life and limb of any person, it would in my view be unconscionable for the Court not to receive that evidence and give it consideration simply because the party seeking to have it admitted could have done so sooner. Indeed, I think that the defendant is to be commended for taking the trouble that it has to bring this evidence to the attention of the Court, given that it has no vested interest in doing so. I will therefore allow the defendant’s application to receive the new evidence.
Submissions on significance of new evidence.
Submissions of defendant
22. Counsel submitted that there is a hierarchy of rights to be considered; the plaintiff’s right to his good name as against the possible threat to the life and wellbeing of another. It is submitted that in Foley v. Independent Newspapers [2005] 1 IR 88. Kelly J. recognised that in appropriate cases where the court finds that there is a real likelihood that publication of material would infringe the right to life or bodily integrity of an individual, the court would grant interlocutory relief restraining publication. In that case Kelly J. said:-
“In this country we have a free press. The right to freedom of expression is provided for in Article 40 of the Constitution and Article 10 of the European Convention on Human Rights. It is an important right and one which the courts must be extremely circumspect about curtailing particularly at the interlocutory stage of a proceeding. Important as it is however, it cannot equal or be more important than the right to life. If therefore the evidence established a real likelihood that repetition of the material in question would infringe the plaintiff’s right to life, the court would have to give effect to such a right. That appears to be the gist of what was said by Finlay C.J. in S.P.U.C. v. Grogan [1989] IR 753 at 765 where in the context of the facts of that case he said:-
“With regard to the issue of the balance of convenience, I am satisfied that where an injunction is sought to protect a constitutional right, the only matter which could properly be capable of being weighed in the balance against the granting of such a protection would be another competing constitutional right”.”
23. The court in Foley did not grant injunctive relief restraining publication because it was not satisfied, on the evidence before it in that case, that it could be justified in restricting the constitutional right of the defendant between the date of the interlocutory hearing and the trial of the action, to continue publishing articles concerning the plaintiff not least because the information complained of in that case was already in the public domain. This latter factor was also present in this case and formed part of my rationale for declining the plaintiff “take down” orders.
24. However, counsel for the defendant argues that in the context of an application for a Norwich Pharmacal order, Foley is clear authority for the proposition that the courts will, where there is sufficient evidence of a threat to the life or bodily integrity of a person, grant appropriate injunctive relief to that person even though it may involve overriding a different constitutional right of another.
Submissions of plaintiff
25. Counsel for the plaintiff relied upon the Norwich Pharmacal decision itself i.e. Norwich Pharmacal Co. and Ors. v.Commissioner of Customs and Excise [1974] AC 133 and the judgment of Lord Reid who summarised the principle as follows:-
“…if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrong doers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should cooperate in righting the wrong if he unwittingly facilitated its perpetration.”
26. It is submitted that this principle was endorsed in this jurisdiction by the Supreme Court in the case of Megaleasing UK Limited, Megaleasing Holdings Limited and Quantum Data SA v. Vincent Barrett and Ors. [1993] ILRM 497 which counsel submits is authority for the proposition that once a plaintiff establishes a prima facie case of wrongdoing, a duty arises on the part of the third party who was in possession of the relevant information, to assist. However, the court in fact resisted such a wide ranging application of the Norwich Pharmacal principle and Finlay C.J., with whom all other members of the Supreme Court agreed stated that:-
“I am, accordingly, driven to the conclusion that the existing authorities upon which the judgment of the High Court is largely based, which are authorities of the English courts, do in fact confine the remedy to cases where a very clear proof of wrongdoing exists, and possibly, so far as applies to an action for discovery alone prior to the institution of any other proceedings, to cases where what is really sought are the names and identity of the wrongdoers, rather than factual information concerning the commission of a wrong.”
27. In Megaleasing, the application was refused because the court considered that the facts of the case fell very far short of a clear establishment of a wrongdoing. The plaintiff submits that the wrongdoing in this case is clearly established and that the verybusiness model of the defendant exposes it to Norwich Pharmacal type orders. Reliance is also placed upon the decision of Kelly J. in EMI Records (Ireland) Limited v. Eircom Limited [2005] 4 IR 148 wherein Kelly J. stated:-
“I am satisfied that whether the right to confidentiality arises by statute or by contract or at common law, it cannot be relied upon by a wrongdoer or a person against whom there is evidence of wrongdoing to protect his or her identity. The right to privacy or confidentiality of identity must give way where there is prima facie evidence of wrongdoing. There is such evidence here.”
28. The plaintiff further relies upon the decision of the High Court in England in the case of Totalise PLC v. The Motley Fool Limited [2001] EMLR 29. The plaintiff in the proceedings was an internet service provider and the defendants operated a website containing discussion boards on which members of the public were able to post material. An individual using the pseudonym “Zdust” had made numerous postings about the plaintiff on the defendants’ discussion boards. These postings called into question the solvency of the plaintiff as well as the competence and integrity of its management. The plaintiff sought disclosure of the name and address of the Zdust and of all documents in the possession, custody or power of the defendants. The defendants removed the offending postings and barred Zdust from the using their sites but declined to consent to the disclosure requested on the grounds that the Data Protection Act in the United Kingdom and the defendant’s own privacy policy precluded such disclosure. Owen J. considered it appropriate to make orders against the defendants requiring disclosure of the information sought. He stated:-
“I turn then to the exercise at my discretion to grant the reliefs sought. I am satisfied, first, that much of the content of the Zdust postings on both defendant’s discussion boards is plainly defamatory. Defamation is a tort of strict liability. The claimant has demonstrated a strong prima facie case against Zdust. Secondly, the defamatory material is of a very serious nature, calling into question the claimant’s solvency and the competence and integrity of its management and directors. Third, the concerted campaign waged by Zdust presents a very considerable threat to the claimant. The potential audience is vast. It has no geographical limit. The claimant, in my judgment, is at risk of serious damage. Fourth, Zdust is hiding behind the anonymity afforded by access to the defendant’s discussion boards. Fifth, the claimant has not other practical means of identifying Zdust.
I am mindful of the fact that both defendants had a policy of confidentiality with regard to personal information relating to those using its websites and do not wish to deviate from that policy. But the claimant argues that it simply wants the author the Zdust postings to take responsibility for its actions, and that, when balancing the interests of the parties, the respect for and protection of the privacy of those who choose to air their views in the most public of fora must take second place to the obligation imposed upon those who become involved in the tortious acts of others to assist the party injured by those acts.
I have no hesitation in finding that the balance weighs heavily in favour of granting the reliefs sought. To find otherwise would be to give the clearest indication to those who wish to defame that they can do so with impunity behind the screen of anonymity made possible by the use of websites on the internet.”
29. In the case of the Rugby Football Union (respondent) v. Consolidated Information Services Limited (formerly via Go Go Limited) (in liquidation) [2012] 1 WLR 3333 the Supreme Court of the United Kingdom made orders in favour of the RFU the effect of which was to require the appellant to disclose the identities of those selling tickets for international rugby games, using the services of the appellant, in a manner contrary to the terms upon which the tickets were sold. The court identified the factors to be taken into account in the exercise of the discretion of the courts upon applications such as this:
“The essential purpose of the remedy is to do justice. This involves the exercise of discretion by a careful and fair weighing of all relevant factors. Various factors have been identified in the authorities as relevant. These include: (i) the strength of the possible cause of action contemplated by the applicant for the order … (ii) the strong public interest in allowing the applicant to vindicatehis legal rights … (iii) whether the making of the order will deter similar wrong-doing in the future … (iv) whether the information could be obtained from another source … (v) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrong-doing”.
The court also identified five other factors that are not of relevance to these proceedings. Interestingly, the court considered that the standard to be met did not require clear proof of a wrong-doing, but rather something akin to a prima facie case – an “arguable” wrong-doing. The court did sound a note of caution however:
“the particular circumstances affecting the individual whose personal data would be revealed on foot of a Norwich Pharmacal Order will always call for close consideration and these may, in some limited instances, displace the interests of the applicant for the disclosure of the information even where there is no immediately feasible alternative way in which the information can be obtained. (Emphasis added).But, in the present case, the impact that can reasonably be apprehended on the individuals whose personal data are sought is simply not of the type that could possibly offset the interests of the RFU in obtaining that information.”
30. It was also argued on behalf of the plaintiff that the defendant is not an arbiter of fact and indeed that the defendant itself accepts this to be so; but notwithstanding that the defendant is now purporting to be an arbiter of fact insofar as it concerns possible threats to the safety and welfare of TVO if the reliefs sought by the plaintiff is granted. Counsel for the plaintiff submits that even on the defendant’s case, press freedom appears to be good in Uganda. It is submitted that the Freedom House publication exhibited by the defendant indicates a free and open press stating as it does, “The Constitution provides for freedom of expression and of the press” and also states that “Uganda has a vibrant media sector, with nearly 200 private radio stations and dozens of television stations and print outlets.” There is no reason to believe that TVO, if his identity is revealed, will suffer the same kind of persecution as is described in the exhibits as being meted out by the Ugandan establishment to minority groups.
31. Counsel for the plaintiff concluded by submitting that if the defendant’s arguments are accepted, TVO will be enabled to continue publishing material defamatory of the plaintiff on the defendant’s internet service.
Decision on Norwich Pharmacal Application.
32. There is not the slightest doubt but that in the ordinary course of events this application would be granted and indeed it would not even be opposed by the defendant. Mr. Walker submits that the very nature of Norwich Pharmacal Orders exposes those to whom they relate to a degree of risk, since the application is always associated with an alleged wrongdoing. While that may be so, none of the authorities to which I have been referred involved any suggestion that a person whose identity would be revealed as a result of the making of the order could be subjected to harassment, torture or worse.
33. It is somewhat difficult for the Court to make an assessment as to the extent of the danger that would be posed to TVO if his identity is revealed. It is fair to say however that there is a consistency in the reports of Freedom House and the US Department of State Human Rights Report on Uganda exhibited by Mr. Gilbert as well as the report of Amnesty International on Uganda for the period 2015/2016, all of which express concern about violations of the rights to freedom of expression, assembly and association.
34. The U.S. Department of State Human Rights Report refers to unlawful killings and torture, and other abuses of detainees and suspects and cites instances of such conduct. It says there were numerous reports of torture and abuses in police detention facilities. As regards freedom of the press, it states that security forces assaulted, harassed and intimidated journalists. All of this is consistent with the Amnesty International Report for Uganda for the period 2015/2016 which states that:-
“Police brutality and restrictions of the right to freedom of peaceful assembly increased. Attacks against activists, journalists and other media workers continued with impunity. Opposition politicians seeking to participate in the national elections scheduled for early 2016 were arrested and detained, along with their supporters.”
35. It also gives specific instances of torture and other ill-treatment. The Freedom House Report referred to by to Mr. Gilbert, while noting that Uganda has a vibrant media sector, heavily qualifies that observation and also states inter alia:-
“Independent journalists and media outlets are often critical of the government, but in recent years they have faced substantial, escalating government restrictions and intimidation, encouraging self censorship. Journalists often faced harassment or physical attacks by police or ordinary citizens while covering the news.”
36. These reports find practical expression in the evidence put forward by Mr. Opiyo in his affidavit of 18th January, 2017. As an executive director of a human rights organisation in Uganda, namely Chapter Four Uganda, and as a practicing advocate who has litigated and continues to litigate human rights cases in Uganda, he is ideally positioned to advise the Court on the extent of the risks posed to TVO if his/her identity is revealed. The contents of his affidavit are self explanatory. In para. 14, he avers unambiguously that if the identity of TVO is disclosed, that person is likely to suffer torture, cruel and inhumane treatment in the hands of the security agents of the State. He also avers that in the past, the criminal justice system has been used to abuse the rights of people critical of the State and is clearly of the view that that is likely to happen to TVO, in the event, that his/her identity is revealed.
37. Mr. Opiyo is independent of the parties to this application and his credentials to express the opinion that he has is beyond reproach. Taking all of the above into account, I am of the view that if I grant the applicant the relief that he seeks, it is probable that TVO, whether the real TVO or the fake TVO, will suffer human rights abuses at the hands of the Ugandan authorities, ranging from unlawful detention and mistreatment in custody to torture. This application must be considered in light of that conclusion.
38. It is true to say that TVO placed himself/herself at risk of identification in posting comments about the plaintiff, not least by doing so on a Facebook page on which there is content critical of the Ugandan regime. To that extent, it might be argued that TVO is the author of his/her own misfortune, but that would scarcely be a reason for the Court to make an order that would expose TVO to human rights abuses.
39. On the other hand, I also have to give due consideration to the fact that I have already found that the postings concerning the plaintiff are defamatory of him, and if the identity of TVO is not revealed, then the plaintiff is left without any relief to vindicate his good name. If he is given the identity of TVO, then he will be able to issue such proceedings as are appropriate in Uganda. What is at issue, therefore, on this application is a weighing of the right of the plaintiff to vindicate his good name on the one hand and the right to life and bodily integrity of TVO on the other.
40. In Foley, Kelly J. clearly recognised that the right to freedom of expression would have to give way to the right to life in the event of a conflict. I think it must be correct to say that a person’s right to his good name must take second place to the right to life and bodily integrity of another where the threat to bodily integrity is sufficiently serious, as I believe it to be here. I think the comment of Lord Kerr of the Supreme Court of the United Kingdom in Rugby Football Union, which I have cited in the concluding part of para. 31 above is apposite. That passage clearly envisages circumstances where a person seeking a Norwich Pharmacal order may be denied such an order even though it may have the effect of denying the applicant a relief to which he would otherwise be entitled.
41. For all of these reasons, I must refuse the application. But I will do so on a conditional basis; the defendant has the means to communicate with TVO. TVO should be notified that unless the offending postings are removed within fourteen days from the date of delivery of this judgment, then the plaintiff will be entitled to renew his application for Norwich Pharmacal relief which will be duly granted. The defendant should notify TVO of this forthwith.