Fred Muwema is a prominent lawyer in Uganda, who claimed that various Facebook pages in the name of Tom Voltaire Okwalinga, or TVO, defamed him. In Muwema v Facebook Ireland Ltd [(No 1)] [2016] IEHC 519 (23 August 2016), Binchy J declined to grant injunctions requiring Facebook either to remove the posts from the account or to prevent the material in them from being re-posted, and I considered these holdings in one of my earlier posts on the case (also here). However, Binchy J did grant an order requiring Facebook to identify TVO, and I considered this aspect of the case in another of my earlier posts on the case (also here). This was not a difficult issue, as the defendant had consented to the order. However, before the order could be perfected, the defendant sought the leave of the Court to introduce new evidence with a view to opposing the making of the order. In Muwema v Facebook Ireland Ltd (No 2) [2017] IEHC 69 (08 February 2017), Binchy J allowed the new evidence to be introduced; and, having considered it, he declined to make the order after all. It is to that aspect of the case that this post is directed.

Jack Gilbert, Lead Litigation Counsel for Facebook, explained that Facebook generally takes a neutral position on applications to identify people behind pages or profiles on their network. However, he said that, when his office was informed of Binchy J’s proposed order, he was informed by his colleagues that TVO is a political activist who has been marked for arrest by the Ugandan Government. He also said that the position was complicated by the fact that the URLs provided by the plaintiff were for a fake or copycat profile of the more established TVO profile. He said that he was informed by his colleague, Ebele Okobi, Facebook’s head of public policy for Africa, that if the identities of the people behind the real and fake TVO profiles (if they are in fact different) were revealed, they may be at risk of arrest and subsequent persecution, and their lives, bodily integrity and liberty would be placed in jeopardy. Moreover, the US Department of State Human Rights Report for Uganda cites examples to unlawful killings and torture, and other abuses of detainees and suspects.

Binchy J considered In re McInerney Homes Ltd [2011] IEHC 25 (10 January 2011) (Clarke J) (affd [2011] IESC 31 (22 July 2011) [61]-[62] (O’Donnell J)); and, notwithstanding that much of the defendant’s new evidence was hearsay, he allowed the defendant’s application to adduce it. This is an important development, not least because the McInerney Homes hurdle is a high one (see, eg, SZ (Pakistan) v Minister for Justice [2013] IEHC 95 (01 March 2013); Nee v An Bord Pleanala [2013] IEHC 584 (29 October 2013); Kilarden Investments Ltd v Kirwans (Galway) Ltd [2013] IEHC 602 (01 November 2013); Rughoonauth v Minister for Justice [2017] IEHC 241 (24 April 2017); English v Promontoria (Aran) Ltd (No 2) [2017] IEHC 322 (17 May 2017); contrast Byrne v Judges of the Circuit Court [2013] IEHC 396 (05 September 2013); PM (Botswana) v Minister for Justice [2013] IEHC 271 (14 June 2013); McCoy v Shillelagh Quarries Ltd [2016] IEHC 9 (19 January 2016); Odeh v Minister for Justice [2016] IEHC 654 (07 December 2016)).

The basis of the order requiring Facebook to identify TVO was the decision of the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, [1973] UKHL 6 (26 June 1973); but it “is a power which for good reasons must be sparingly used” (Megaleasing v Barrett (No 2) [1993] ILRM 497, 503 (Finlay CJ). Hence, in Rugby Football Union v Consolidated Information Services Ltd [2012] UKSC 55 (21 November 2012) [46] Lord Kerr (Lord Phillips, Lady Hale, Lord Clarke and Lord Reed concurring) held:

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.

Moreover, Binchy J held that where there is sufficient evidence of a threat to the life or bodily integrity of a person, the court grant appropriate injunctive relief to that person even though it may involve overriding a different constitutional right of another (see Foley v Independent Newspapers [2005] 1 IR 88, [2005] IEHC 14 (28 January 2005)). Hence, Binchy J concluded (at [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, … 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.

Binchy J therefore refused the application for a Norwich Pharmacal order against Facebook to identify anyone related to either of the TVO accounts. But he did so on an interesting basis. He observed that Facebook has the means to communicate with TVO, and he required Facebook to notify TVO that, unless the offending postings were removed within fourteen days, the plaintiff would be entitled to renew his application for Norwich Pharmacal relief, which would then “be duly granted” (at [41]). Binchy J was subsequently informed that the TVO posts had been removed, but that the fake TVO had not, even though the person running it had also been informed of his decision. So he made a Norwich Pharmacal against Facebook to identify the owner of the fake TVO account. This is a very subtle approach by Binchy J, and it is to be hoped that this sensitivity is replicated in future Norwich Pharmacal applications. It may once have been the case that, on the internet, nobody knows you’re a dog; but that’s no longer true, and it is now clear that, in appropriate cases, a court will make an order to identify the dog’s colour and breed.

One final point. In introducing his discussion of Foley, Binchy J commented (at [22]) that counsel for the defendant had “submitted that there is a hierarchy of rights to be considered”. Although he did not use the language of hierarchy again, his conclusion in paragraph 40 of this judgement, set out above, is redolent of it. Such an approach is best avoided. In AG v X [1992] 1 IR 1, 79, [1992] IESC 1 (5 March 1992) McCarthy J said (at [138]):

If there be a hierarchy of constitutional rights, as argued by the Attorney General, it is, perhaps easier to compare two of them rather than to identify the level of each particular right. This is all the more so since the catalogue of unenumerated rights remains incomplete. … I would prefer to seek harmony between the various rights guaranteed and to reconcile them to each other rather than to rank one higher than another.

And in Sunday Newspapers Ltd v Gilchrist and Rogers [2017] IESC 18 (23 March 2017) O’Donnell J (Denham CJ, Clarke, MacMenamin and Dunne JJ concurring) went further (at [36]):

I have reservations about the language of balancing of rights and the hierarchy of rights referred to in the Irish Times case [Irish Times Ltd v Ireland [1998] 1 IR 359, [1997] 2 ILRM 541, [1997] IEHC 30 (18 February 1997)] and relied on in the judgment of the Court of Appeal [see [2016] IECA 296 (21 October 2016)]. The Constitution does not itself rank the rights and obligations it provides for, nor does it tell us how to divine any hierarchy. The obligation of a court is to uphold all the provisions of the Constitution. Furthermore, as Denham J observed in the Irish Times case, the ranking of rights does not in any event answer the question in any particular case. An important further consideration is the extent to which the right is impaired. In theory if such an approach is taken, a court would have to try to weigh a complete denial of a lower ranked right against a lesser intrusion on a higher ranked right. The Constitution gives no guidance as to how this might be done. In truth the Constitution should not be too readily interpreted to require any hierarchical ranking of rights with the consequent possibility of subordination of one right to another. The Constitution was intended to function harmoniously, and where there were points of potential conflict between the rights and obligations provided for, that should be sought to be resolved without the subordination or nullification of one provision. There is a danger that this approach could lead to an overriding of constitutional rights where their application is inconvenient, or when asserted by unpopular and undeserving parties. It should be remembered that essence of constitutional rights is that they call for enforcement precisely when inconvenient, contrary to the wishes of the Government, the clamour of the media, the public mood more generally, and even the personal wishes of judges themselves. It is easy to express any argument in constitutional terms and if by that route Article 34.1 or any other constitutional provision could be qualified or disapplied, the Constitution would lose much force.

It is to be hoped that this will give the quietus to the misconceived hierarchy analysis.