TVO case: Can Facebook be forced to reveal a pseudo subscriber

The decision contained in a landmark judgment delivered on Wednesday is the result of a protracted legal battle between Lawyer Fred Muwema (pictured) and Facebook 

In Summary

Deputy government spokesperson and deputy director of the government Media Centre, Shaban Bantariza told Daily Monitor on Monday that court should have looked at the abuse of the privacy of a private citizen by TVO rather than the ambiguities of human rights violations

By Othman Semakula

To understand the dilemma that Fred Muwema had put Facebook in you must first appreciate the company’s data privacy policy, under which it responds to legal challenges.

Muwema had in February last year sued Facebook asking court to compel Facebook Inc to reveal the identity of blogger, Tom Voltaire Okwalinga (TVO), who he claimed had defamed him.

The case was filed in Ireland because the country hosts Facebook’s holding company that handles global operations outside America.
In a business such as Facebook, whose key point of sale is trust, any legal pitfall regarding a subscriber’s breach of privacy is one hell of a dilemma that will be challenged to the last man.

Otherwise, in holding onto the identity of TVO, a far flung subscriber with limited following [above 105,800 followers] compared to many of the company’s global subscribers, Facebook was padding itself against reputational damages that have far reaching implications on not only its revenues but long term business existence.

In such a business and internet-driven platforms or mobile-based communication, trust is invaluable because very few or none will have faith in a company such as Yahoo if they believe their information is likely to leak or be shared with third parties.
In September last year, Yahoo confirmed that as much as 500 million accounts’ had been breached in a massive leak in 2014.

Such leaks have serious ramifications and in its defence against Muwema’s maneuvers, Facebook had to find the right answers and reasons to hold onto the identity of TVO, notwithstanding the share of his contribution to one of the world’s most profitable and fastest growing companies.

In its data policy under section five [revised in September 2016], Facebook says as custodians of a subscriber’s information it may “share your information in response to a legal request if we have a good faith belief (sic) that the law requires us to do so”.

The circumstances under which information can be shared include a search warrant, court order or subpoena [a request by a government agency for the production of documents or details of an individual].
Such information, the company says, can be shared on legal request outside US but it must be contented that the information “affects users in that jurisdiction and is consistent with internationally recognised standards”.

Therefore, the issue is not that Facebook cannot share user information but the company must make sure that such a user is not put in harm’s way.

In this case therefore, Muwema’s demands were knocked out because Facebook could not share information but because of human rights violations in Uganda, which according to evidence on court record, proved that TVO’s life would be danger if his identity is revealed.
In his affidavit, human rights lawyer, Nicholas Opiyo, highlighted a series of government-driven abuses and torture meted on people that government has previously suspected to be TVO.

Opiyo told Daily Monitor last Friday that he countered Muwema’s suit because he was indeed convinced that government would not hesitate to torture TVO if they got to know who he is.
“Look at how they have tortured people they (government) suspect to be TVO. At least we were able to put up a case and the judge saw our point,” he said.

People suspected to be TVO including Robert Shaka have been held incommunicado with claims of torture before they are produced in court days or weeks later.

In his ruling delivered last Wednesday in a court in Ireland, Justice Binchy held that it was somewhat difficult for court to make an assessment as to the extent of the danger that would be posed to TVO if his identity was revealed.

However, he ruled that “it is fair to say 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 in Uganda.”

It should be noted that government was not part of Muwema’s case but Opiyo said different government and security agencies must have been following the case with keen interest.

Government has previously, through Uganda Communications Commission, severally asked Facebook to hand them details of TVO but to no avail.

Deputy government spokesperson and deputy executive of the government Media Centre, Shaban Bantariza told Daily Monitor on Monday that court should have looked at the abuse of the privacy of a private citizen by TVO rather than the ambiguities of human rights violations.

“Why should court protect someone abusing the rights of others? Protecting TVO to insult the freedoms of others is the epitome of impunity,” he said.

However, in seeking to deliver a win-win, Justice Binchy ordered Facebook to engage TVO to pull down the alleged defamatory posts within 14 days short of which Muwema could reapply to court to seek for TVO’s identity.

Last Thursday Muwema said he had partially won the battle because he believes that if TVO fails to comply with the order his identity will be revealed.

“Initially 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,” he said.

However for Opiyo there was no any win-win because Muwema failed to attain the principle of his case that had sought to compel Facebook to hand him details of TVO.

In February last year, Muwema sued Facebook in Ireland demanding that court compels the social media giant to reveal the identity of TVO who he claimed had defamed him.

In a post TVO had claimed that the then Information and National Guidance minister, Jim Muhwezi, had delivered Shs900m to Muwema seeking to stage-manage a break-in in the offices of lawyers representing Amama Mbabazi in a presidential election petition against Mr Museveni.

The lawyers whose offices were broken into included Mohamed Mbabazi in Wandegeya and Muwema’s in Kololo where Mbabazi’s team claimed key evidence to support the petition was stolen in the midnight break-in.

Cases of security agencies or individuals demanding that they are provided with details of a user are not alien to Uganda but a global functionality, especially when the world is grappling with cybercrime and threats of terrorism.

In the US, mobile phone manufacturer, Apple rejected FBI maneuvers to unlock an iPhone, which security agencies believed contained key information that could help them investigate a suspected terrorist, Syed Farook, 28, who shot 14 people at a San Bernardino County health department in US.

FBI, which had obtained a court order against Apple, later decoded the phone without Apple’s assistance.

However, Google chief executive officer, Sundar Pichai and other tech executives supported Apple’s refusal to unlock the phone arguing that “forcing companies to enable hacking could compromise users' privacy”.

“We build secure products to keep your [user] information safe and we give law enforcement access to data based on valid legal orders,” Pichai said.

In Zimbabwe, Facebook has severally turned down request from the country’s ruling Zanu-PF party and security agencies to hand over the identity of Baba Jukwa, a notorious blogger who shreds government agents and leaks key government secrets.

Baba Jukwa, according to available information, is believed to be part of disgruntled insiders, who publish government information through social media platforms, especially Facebook.

His page - Baba Jukwa – has more than 400,000 followers.

osemakula@ug.nationmedia.com