EoinIn November 2011, Eoin McKeogh was falsely branded as a thief on YouTube, Google, Facebook and a number of websites.  This was the result of a video and accompanying material which wrongly identified him as a man leaving a taxi without paying the fare in Monkstown, Dublin.  Mr Keogh has, since that date, made great efforts to remove this material from the internet.

On 11 January 2012, Mr McKeogh obtained interim injunctions designed to secure the removal of the material along with Norwich Pharmacal orders.  On 12 January 2012, he was refused an order prohibiting the press from continuing to publish the defamatory material ([2012] IEHC 95).  At that stage the judge noted that there was “incontrovertible evidence” that Mr McKeogh was not the man leaving the taxi – as he had been in Japan at the time of the incident.  The judge commented at the time that

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.

The background to the litigation is set out in this Daily Mail article.

The plaintiff then sought a mandatory injunction so that all the defamatory material would be removed from the internet.  This was strongly resisted by Google and Facebook.   The application resulted, ultimately, in a judgment[pdf] given on 16 May 2013 by  Mr Justice Peart in the High Court in Ireland.

The judge expressed his surprise that Google and Facebook had not assisted the plaintiff more willingly.  A request from the court for an experts meeting was refused [10].  The application, in the end, took 10 days of hearing.  He also expressed concern at the reluctance shown by Facebook to provide the plaintiff with an electronic copy of the the fake Facebook profile page which had been established.

The judge decided that a mandatory injunction should be granted.  But before deciding what form this should take he ordered the defendants to nominate an expert or experts to meet with the plaintiff’s expert [23]. This was something that they should have agreed to do.

The judge did not make an immediate mandatory injunction order because it was not clear what steps were to be taken to comply with that order:

“Without such precision, the defendants will not know what they have to do to comply.  The proposed meeting should, if feasible, produce a report for the Court upon which each expert can agree.  In that event, the report would set forth what steps are to be taken to achieve the total takedown which the plaintiff requires, or at least what steps are possible to achieve that objective as far as reasonably possible” [25]

If the experts could not agree then the defendants’ expert(s) was required to produce a report with the plaintiff’s expert producing a response.  All this was to be done within 42 days.

The Judge also ordered Facebook to provide an electronic copy of the Facebook profile.  Any further order would await what transpired from the meeting of the experts [27].

Comment

This case provides  yet another illustration of the difficulties faced by individuals who are subject to campaigns of abuse on the internet.  Facebook Ireland Limited took part in the proceedings, as did Google Ireland Limited.  They had sought to argue that they were under no obligation to take any steps to assist the plaintiff.  The judge was clearly unimpressed by their failure to cooperate and frustrated by their attitude.  He was, nevertheless, hampered by the lack of clarity as to the technical steps which could be taken to remove the offending material.

It has been noted by a number of commentators that now the non-US operations of Facebook are located in Ireland, there is is likely to be more litigation involving that company in the Irish courts.  Although this case involved an Irish plaintiff, his lawyers were perhaps encouraged to litigate these issues by the availability of a local defendant (against which a judgment can be forced).

It remains to be seen whether the parties’ experts can resolve the issue as to how to remove the remaining defamatory material or whether the judge will required to grant a mandatory injunction in some form.

See also:

SCL Website “Defamation and Injunction: Google and Facebook Must Try Harder“

IT Law in Ireland “Defamatory material on Facebook and YouTube: McKeogh v. Doe and others“.

Clarke Jeffers Solicitors “Internet Defamation“