© 2017 Oryem Nyeko

Muwema v Facebook case summary

Q: The case of Muwema v Facebook has been described as a landmark case in ICT law. Explain the significance of this case with reference to the facts, issues raised, legal questions and findings.

Facts (5)

  • Ptf is a Ugandan lawyer at a Ugandan firm, while Def is the operator of Facebook
  • Ptf takes issue with three “highly offensive and defamatory publications” (the “Reported Content”) posted on Facebook by a 3rd party known as TVO
  • Ptf wrote to Def on seeking removal of the Reported Content and the disclosure of the IP address of TVO
  • Def wrote to Ptf, stating that the content was no longer accessible in Uganda, which subsequently transpired was not the case
  • Ptf thereafter issued proceedings against Def, seeking damages for defamation of character, specifically:
    1. A permanent order prohibiting the publication or further publication of TVO’s Facebook page and the content
    2. Alternatively, an order prohibiting publication or further publication of a number of posts
    3. An order that Def cease and desist in the further publication of the articles
    4. An order directing Def to provide Ptf with any details it holds relating to the identities and locations of the operators/individual posters of/on TVO’s Facebook page

Issues raised (9)

  • Ptf avers that the publication of “false, scurrilous and defamatory” articles on TVO’s page impinges on his standing and reputation as a lawyer, holding him up to public ridicule, contempt and threads; they were “extremely damaging in light of his profession”
  • Ptf submits that Def has a Statement of Rights and Responsibilities (stating that it will remove content posted on Facebook which violates the Statement – including a requirement of account holders not to post anything which is unlawful, misleading, malicious or discriminatory) with which it must comply
  • Ptf submits that the court may make an order against Def as an intermediary service provider not to infringe or cease to infringe his rights
  • Ptf submits that Def is in an analogous position to the publisher of the Reported Content, due to having “knowledge” of the Reported Content and having left it [been in a position to leave it?] in place
  • Def avers that it is not legally required of or possible to proactively monitor material published by its users, and that comment and opinion about public figures is inevitable
  • Def avers hat it is not a publisher of content on the Facebook site – rather it is an information society service provider (intermediary service provider) within the meaning of the E-Commerce Directive/ “the Regulations”, is entitled to the defence of innocent publication and is therefore not liable for any allegedly defamatory content created by its users
  • Def submits that it does not know whether or not the Reported Content is unlawful or not, and is entitled to the protection afforded by the Regulations (18)
  • Def avers that Ptf has been subject to considerable controversy, that other critical commentary on him is available on other sites, and therefore that the Reported Content does not cause Ptf reputational damage, and furthermore that the order to take them down would be ineffective
  • Def submits that Ptf’s status as a public figure means that it is inevitable that critical material concerning controversial matters will be posted on the internet, and that freedom of expression insofar as public figures takes priority over the private life of an individual

Legal question(s) (4)

  • Was Ptf defamed by posts made on Facebook? Were they “extremely damaging”?
  • Should Def be ordered to take down the material already posted on Facebook? The “take down” order.
    1. Is Def in an analogous position to a “publisher” and did Def “publish” the Reported Content?
    2. Can Def rely on “innocent publication” defence under section 27 of Defamation Act?
    3. Is Def liable for content created by its users?
    4. Can the court make an order requiring Def not to infringe, or cease to infringe, Ptf’s rights (in terms of 18(3) of the Regulations)?
  • Should Def be ordered to prevent the material being posted on the website? The “prior restraint” order.
    1. Is Def obliged to monitor and remove unlawful content from its site? Esp. in light of its Statement of Rights and Responsibilities, the possible futility of doing so, and any other defences the Def may have?
  • Should the court reveal the identity of TVO and/or the posters on the TVO page by granting a Norwich Pharmacal order?

Findings and reasons (4)

  • There “can hardly be any doubt” as to whether the words (in the Reported Content) are defamatory; they are manifestly defamatory unless proven true
  • Def cannot be ordered to take down the material
    1. Def is entitled to innocent publication defence under Defamation Act as “on the face of it”, it appears to fit within definition under section 27
    2. Court cannot make an order requiring Def not to infringe or cease to infringe Ptf’s rights in terms of the Regulations because the Regulations do not confer upon the court to make such an order, rather the power to do so must derive from elsewhere – in this case, the Defamation Act, which the Court has found, provides a defence to the Def
  • Def cannot be compelled to monitor and prevent publication of future posts on the website
    1. For similar reasons to “take down” order, i.e. the order can only be granted in circumstances where the Def has no defence reasonably likely to succeed
    2. Moreover, order would serve no purpose because of the availability of publications containing the same and other damaging allegations
  • Norwich Pharmacal order granted, in the terms that the parties had agreed
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