Ruling leaves open core issue of defamation liability

McCann FitzGerald lawyers have addressed the legal question of whether a recent Court of Appeal defamation claim against Google Ireland was statute-barred.

The case concerned the appeal of a High Court order that refused an application to join Google as a defendant in defamation proceedings, as the High Court found the claim to be “manifestly statute-barred”.

The appellants claimed they had been defamed by a video posted on YouTube in June 2018, write McCann FitzGerald lawyers Audrey Byrne, Bébhinn Bollard, Conal O'Doherty and Dearbhla Hamill.

The Court of Appeal considered this under sections 11(2)(c) and 11(3B) of the Statute of Limitations 1957 and the Defamation Act 2009 and if Google could be joined as a defendant in the proceedings.

The 2009 act provides that a defamation action shall not be brought after one year, or where directed by the court, a period not exceeding two years, in the interests of justice.

Failure to bring action

This means that the court must have regard to the reason for the failure to bring the action within the one-year period and the extent to which any relevant evidence is, because of the delay, no longer capable of being adduced.

Google argued that the appellants’ cause of action accrued on 23 June 2018 when the offending video was first posted on YouTube and that any action against Google was required to have started (at latest) by 22 June 2020.

The appellants’ proceedings  began against the original poster of the video on 29 June 2018, but the application to join Google was not made until 12 December 2022, following various letters from the appellants to Google between 2021 and 2022.

Ultimately, the Court of Appeal concluded that the matter was not sufficiently clear cut to refuse the joinder at that stage of the proceedings and emphasised that it was not expressing a view on the ultimate outcome of the limitation issue, which it said should be resolved either at trial or as a preliminary issue.

Consequently, the case was remitted back to the High Court for further proceedings.

Court of Appeal judgment

The Court of Appeal examined when intermediary service providers became liable as a “publisher” for defamation purposes, considering English and Australian case law on internet platforms cited by the appellants.

In Tamiz v Google Inc [2013] 1 WLR 2151, an English case, the plaintiff complained about alleged defamatory comments posted on a blog hosted on Blogger.com, a platform operated by Google.

The England-and-Wales Court of Appeal held that if Google was notified of such comments and failed to remove defamatory material within a reasonable time, it could be liable as a “secondary” publisher.

In Google Inc v Duffy [2017] SASCFC 130, the Supreme Court of South Australia held that Google did not become liable as a publisher until after it was put on notice of the offending material.

Kourakis CJ explained that Google’s search results were published when a person making a search viewed them on their device.

Google does not have any practical ability to review the content of the search results before they are displayed.

The court emphasised that Google should be regarded as a secondary publisher of its search results and knowledge of their defamatory content should not be attributed to it until notice was given.

The court further stated that Google could only be held liable for publications made after it had been notified and had reasonable time to act.

Kourakis CJ limited Google’s liability as a publisher to the results of searches made only after it was put on notice.

The court reasoned that although Google did not write the material, it facilitated its publication by designing the programme that generated the snippet.

Since Google was aware of the defamatory nature of the material and refused to remove it, it could not claim innocent dissemination.

Thus, Google was liable under Australian law as a secondary publisher of defamatory content.

These English and Australian authorities set out that, where a case was brought against a service provider, such as Google, unless and until it had been given notice of the material in question and was asked to take it down, it did not become a publisher of the material posted on its platforms.

Interpretation

In its judgment, the Court of Appeal also considered the appropriate interpretation of the 2009 act and the Statute of Limitations, focusing on when the cause of action accrued for defamation involving internet platforms.

The Court of Appeal considered various potential dates for the accrual of the cause of action, including:

• After receipt of the appellants' detailed letter on 18 October 2022,
• Earlier dates when previous complaints were made to Google,
• When an online YouTube dispute resolution process was used, and
• When the video first became accessible on YouTube on 23 June 2018.

The Court of Appeal accepted that the appellants had a stateable argument that Google did not become liable as a publisher until either (a) receipt of the letter of 18 October 2022, or (b) the expiration of a reasonable time thereafter in which to remove the offending material.

On either basis, it appears that, in the court’s view, there is an argument that publication did not occur until sometime after October 2022, rather than in June 2018.

The court emphasised that the case law suggested that Google, or a service provider such as Google, was not regarded as a publisher merely by reason of the fact that the material was made available on its platform and became capable of being viewed there by anyone accessing the platform on the internet.

On that basis, it could be argued that the appellants’ claim against Google was not statute-barred.

The Court of Appeal noted that, “it may well, ultimately, be the case that Google will be found to have been right on that issue. However, there are contrary arguments that can be advanced.”

As noted above, the Court of Appeal concluded that it would not refuse a joinder at this stage of the proceedings, and the case was remitted back to the High Court.

Conclusion

The Court of Appeal in Gilroy v O’Leary and Google Ireland did not resolve the substantive question of when the limitation period begins to run against ISPs (internet service providers) in defamation proceedings.

Instead, the court held that it was not manifestly clear that the claim against Google was statute-barred, given the arguable case that Google only became a publisher, and thus potentially liable, after being notified of the allegedly defamatory content and failing to act within a reasonable time.

The court emphasised that, where there was a credible argument on the limitation issue, it was inappropriate to refuse joinder at the procedural stage and that such questions should be determined at trial or by way of a preliminary issue.

The judgment therefore leaves the core legal issue open, making clear that the accrual of a cause of action in online defamation, particularly as it relates to ISPs, remains unsettled and fact-sensitive.

The court’s approach demonstrates that the interaction between publication, statutory limitation provisions, and the conduct of internet intermediaries is a matter for detailed examination by the trial court, rather than summary determination at the joinder stage.