Lawyer fails in bid to seek anonymous blogger's identity from Facebook

By Ann O'Loughlin

A Ugandan lawyer who has sued Facebook Ireland over allegedly defamatory posts by an anonymous blogger has lost his appeal seeking the identity and location of the blogger.

The Court of Appeal said lawyer Fred Muwema's right to also bring defamation proceedings against a blogger who goes under the pseudonym TVO (Tom Voltaire Okwalinga) was outweighed by the risk to life or bodily integrity of TVO from the Ugandan authorities if his identity is disclosed.

Mr Muwema says he was defamed in a number of posts by TVO.

He brought defamation proceedings and sought orders to have the posts taken down by Facebook Ireland because it provides the social media service to all users outside of the the US and Canada.

The posts were removed and Mr Muwema also wanted the identity of TVO so that he could join him in the defamation proceedings against Facebook which denies his claims.

Facebook opposed revealing his identity without a court order. It argued there was evidence to show that if it was disclosed he would be exposed to arrest and ill-treatment at the hands of the Ugandan authorities. TVO has posted material critical of the Ugandan government which also wants to know his identity.

In the High Court last year, Mr Justice Donald Binchy refused to order identity disclosure saying the threat to TVO was sufficiently serious that Mr Muwema's right to a good name had to take second place to TVO's right to life and bodily integrity.

Facebook had provided evidence from award winning Ugandan human rights lawyer, Nicholas Opiyo, who said a man called Shaka Robert, who he said was widely believed to be TVO, had been subjected to abuse of his rights by the Ugandan authorities for his (Robert's) online activism.

Mr Opiyo represents Mr Robert and says his client has been held in a detention centre notorious for torture in Kireka, Kampala, and held incommunicado in breach of his constitutional rights.

Despite getting a court order that he be released, the authorities refused to comply and instead charged Mr Robert with "disguising himself as TVO between 2011 and 2015" and with posting statements on Facebook to "disturb the right of privacy" of Ugandan President Yoweri Museveni.

He was eventually released on bail but when he attempted to travel for a holiday, he was again arrested at Entebbe Airport and accused of theft before being later released in the dead of night, Mr Opiyo said.

Anyone arrested on suspicion of being TVO is subjected to extreme abuse of their rights the the police, often in violation of court orders, he said.

Mr Muwema, in his appeal, said the High Court placed too much weight on the "hearsay affidavit evidence" of Mr Opiyo and of Facebook's own lawyer in Ireland, Jack Gilbert, and on an Amnesty International report.

It was argued the trial judge placed too little reliance on Mr Muwema's affidavit stating, among other things, that Facebook'sclaims about Uganda were unnecessarily alarmist. Mr Muwema also said the justice system in Uganda is generally fully functional and serves justice to everyone, including government critics and "compares favourbly to other leading countries in Africa".

Facebook opposed the appeal.

In his decision on behalf of the three-judge Court of Appeal, Mr Justice Michael Peart said he would not interfere with the High Court decision.

It was inevitable that the risk established by the evidence should be considered to outweigh Mr Muwema's right to bring proceedings against TVO.

The judge added that Mr Muwema already has a defamation case against Facebook and if successful he will be compensated. He noted Facebook is defending the claim including on the basis that it is not a publisher of the defamatory material.

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