knowledge 6 September 2024 |

High Court finds plaintiffs are ‘time-barred’ from joining Google in defamation action concerning YouTube

In Gilroy and Byrne v O’Leary,¹  the High Court recently considered an application to join Google Ireland Limited (“Google”) as a co-defendant to a defamation action.

The Court refused to join Google as a co-defendant on the basis the claim against it was statute-barred. It rejected the plaintiffs’ argument that the date from which time ‘begins to run’ was the date on which Google refused to take down the alleged defamatory video, rather than the date on which the cause of action accrued (i.e. the date the video first became available on YouTube). The time limit for defamation actions is one year from accrual of the cause of action, which can be extended to two years in certain circumstances and where the Court considers it is “in the interests of justice” to do so (s. 11(3A) of the Statute of Limitations Act 1957, as inserted by s. 38 the Defamation Act 2009, the “1957 Act”).

While the Court acknowledged that the discretion to refuse to join a co-defendant is narrow, it considered that this was a clear case which required refusal.

Background

The plaintiffs sought to join Google on the basis that it owns the video-sharing platform, YouTube, where the plaintiffs alleged the first named defendant, Ms O’Leary, had uploaded a defamatory video. The video in question was posted on YouTube by Ms O’Leary on 23 June 2018 (“the YouTube video”). The statements in question in the video said that the plaintiffs promoted the use of a certain mineral solution as a cure for autism, cancer, and AIDS. The plaintiffs issued proceedings against Ms O’Leary six days later on 29 June 2018.

Three years later in 2021, the plaintiffs requested that Google remove the video from YouTube, indicating that they would seek to join Google to the proceedings if it did not. Google refused, stating that it was not the publisher of the video. The plaintiffs then made an application, pursuant to Order 15 Rule 4 of the Rules of the Superior Court and/or pursuant to the High Court’s inherent jurisdiction, to join Google as a co-defendant on 12 December 2022; more than four years after publication of the YouTube video.

It was the plaintiffs’ case that the cause of action accrued on 18 November 2022, one month after they had sent a letter to Google requesting that it remove the alleged defamatory content, when Google was ‘put on notice of the offending content’, thereby becoming a ‘publisher’.

It was Google’s case that the question was not whether it was a publisher of the YouTube video but, assuming that it was, of when time began to run under the 1957 Act. Google argued that it was clear the YouTube video came to the plaintiffs’ attention immediately after it was published so there was no reason why they could not have issued proceedings against it inside the statute.

When does a Court have jurisdiction to refuse to join a co-defendant?

The Court refused the application, finding that it was time barred under s. 11(3B) of the 1957 Act. In its  analysis, the Court relied on two High Court decisions as to when it is appropriate to refuse to join a co-defendant: Hynes v. Western Health Board [2006] IEHC 55 and O’Connell v Building and Allied Trades Union and Others [2012] IESC 36. Hyland J applied the test for refusal set out in Hynes which was later adopted in O’Connell that:

(i) A court should be satisfied not only that the proposed co-defendant is manifestly time barred, and

(ii) if joined, the proposed co-defendant will argue the joinder is time barred and will be in a position to raise such an argument.

Judge Hyland emphasised that the default approach is to join a co-defendant, however, she distinguished this case from one where the default approach applied, finding that it met the test laid down in O’Connell (above).  

When did the cause of action accrue under the 1957 Act?

The Court considered whether the limitation period was sufficiently clear so that the plaintiff’s case against Google was ‘manifestly time-barred’.

The plaintiffs argued that the date of publication was the date on which they requested Google to take down the material and it refused. Judge Hyland reasoned that, even if that later date was accepted as the date of publication, section 11(3B) of the 1957 Act does not apply to the date of publication but to the date of “accrual of the cause of action”.

In respect of online publication, section 11(3B) provides that the date of accrual of the cause of action is the date on which it is “first capable of being viewed or listened to through that medium.” As a result, Judge Hyland agreed with Google’s position that it did not matter when Google was requested to take down the YouTube video; what was relevant was the date the YouTube video was first made capable of being viewed online. Judge Hyland concluded:

“In my view, the specificity of s.11(3B) precludes an argument that the cause of action accrued for the purpose of bringing defamation proceedings on the date there was a refusal to take down material.”

She stated that to conclude otherwise would be to ignore the plain wording of the legislation. She noted that the jurisdiction to extend time under the 1957 Act should only be exercised in limited circumstances, which did not arise in this case.

Although the plaintiffs contended that to apply the legislation in this way would be unfair to persons who did not know about the publication of a defamatory statement until much later, they were precluded from making this argument where this had not arisen on the facts. Here, the plaintiffs were aware of the video from the date it became available on Youtube and did not explain why they did not join Google at that time or afterwards, nor write to it within a timely fashion requesting take down.

Comment

The decision makes clear a number of points for parties who wish to join co-defendants or defend against an application to be joined, in defamation actions involving online publication:

• The date of cause of accrual of the action is the date that the content is ‘first capable of being viewed or listened to’ on the internet. In other words, this is when the content is first uploaded publicly. Even if individuals request take down of the defamatory content at a later date, this will not affect the date of accrual of the defamation action.
• Plaintiffs ought to request take down of content and/or join parties they claim published the defamatory content within one year of the content being uploaded and available to view on the internet. The Courts have discretion to extend this period to two years but will construe the date of accrual of the cause of action strictly.
• Whilst the ‘default approach’ is to join co-defendants, a Court can refuse to join a defendant where the claim against that defendant would clearly be statute barred and this is argued by the proposed co-defendant.

Also contributed to by Charlotte Ashmore