Court allows Facebook to keep TVO identity secret

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The High Court in Ireland has accepted global social media giant Facebook’s plea to conceal self-styled social media activist, Tom Voltaire Okwalinga (TVO)’s identity. Court argues that revealing TVO’s identity to one of Uganda’s senior lawyers, Mr Fred Muwema would put his life in danger and expose him to harassment from the government.

The decision contained in a landmark judgment delivered on Wednesday is the result of a protracted legal battle between Mr Muwema and Facebook. The outspoken lawyer sued the social media powerhouse following TVO’s controversial claims that he had pocketed Shs900 million delivered by former information and national guidance minister Jim Muhwezi to stage manage a break in at his chambers in Kololo so the state could tamper with critical evidence of his client and former presidential candidate Amama Mbabazi.

The evidence was to be used in a case filed by Mr Mbabazi contesting President Museveni’s February 2016 election.
In the decision, Mr Justice Binchy holds, “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 consistency in the reports of Freedom House and US Department of State Human Rights Report on Uganda as well as Amnesty International all of which express concern about the freedom of expression and assembly.” Seeking to balance the need to hand over TVO to Mr Muwema “so he can protect his good name” by way of a defamation suit, the court took to protecting the safety of TVO given the history of Uganda’s human rights transgressions.

The judge however, in the last paragraph of the 26 page judgment clarified this was on condition that Facebook asks TVO to pull down the defamatory content 14 days from the delivery of the judgment lest Mr Muwema makes a fresh application to the court to have his identity revealed.
“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 14 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 forthwith,” he held.
A Norwich Pharmacal order is a court directive for the disclosure of documents or information.

In an earlier order in a supplementary decision delivered by the court on July 29, 2016, the subject of a written judgment dated August 23, 2016, the judge denied Mr Muwema some orders that would have had the effect of taking down TVO’s postings concerning him but ordered Facebook to reveal his identity so the lawyer could sue him from Uganda for defamation.
It is against this backdrop that Facebook moved fast and protested the order on December 21, laying evidence of gross human rights violations by Uganda and previous requests by Uganda Communications Commission to Facebook to hand over TVO to the Ugandan state.

Mr Jack Gilbert, the lead litigation counsel of Facebook in an August 19 affidavit asserted, “In my role, I receive hundreds of legal claims each year which comprise dozens of Norwich Pharmacal relief or basic subscriber information. Because Facebook is not a publisher, its general position is that any complaints regarding content should be directed to the relevant user that posted the content.”
In this particular case however, the judge noted, Facebook did not oppose the order to have its subscriber’s identity revealed only to turn around and raise the issue of TVO’s safety later.
Mr Muwema had told the court in his affidavit that whereas Uganda has challenges with human rights, “it is alarmist to paint a picture of unmitigated violations of human rights and lawlessness in Uganda.”

His affidavit was however replied by human rights lawyer and former secretary general of the Uganda Law Society Mr Nicholas Opiyo who on January 18 swore, “I know that Uganda Police have been looking for TVO for a very long time and when they arrest anyone on suspicion of being TVO, they are subjected to extreme abuse of rights and violation of court orders.”
He added, “I have observed the use of trumped up charges to intimidate those critical of the person of the president. Kizza Besigye, his biggest political rival has been charged over 100 times on trumped up charges. He spends most of his time traversing the country answering a litany of charges.” It is this affidavit that the court used to guide itself in the decision. Facebook now has 14 days to ensure TVO deletes the defamatory content against Mr Muwema or else the court will allow his application for revelation of his identity.

When contacted, Mr Muwema said: “I am waiting to have a full brief from my lawyers in Ireland but from the onset you see a partial grant of my request to the extent that the identity of TVO will be revealed if he doesn’t delete that content in 14 days so it is a 50-50. Initially the court had refused to grant an order for the removal of the content but now it has been granted so I shall discuss all those issues with my lawyers in Ireland.”
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