The High Court in Gilroy and Byrne v O'Leary [2024] IEHC 349 applied the Statute of Limitations to conclude that the date of accrual of a cause of action in defamation arising out of material published on the internet is the date the defamatory material was first capable of being viewed or accessed.
The facts
The plaintiffs instituted proceedings against the defendant, alleging that a video first published on 23 June 2018 on a video-sharing platform, YouTube, contained defamatory statements of them (Proceedings). It was alleged that the defendant suggested that the plaintiffs were promoting the use of Miracle Mineral Solution, a supplement containing bleach, as a cure for autism, cancer, and AIDS. The Proceedings were issued six days after the alleged date of publication of the video.
In March 2021, almost three years after the video was first published, the plaintiffs first requested that Google Ireland Ltd (Google), the owner of and service provider for YouTube, take the video down. Google refused as it was not the publisher of the impugned material under section 27 of the Defamation Act 2009 (2009 Act). The plaintiffs brought an application to join Google as a co-defendant to the Proceedings. The Application was heard by Ms Justice Hyland.
The arguments
Google resisted the Application on the basis that it was statute barred, relying on section 11(3B) of the Statute of Limitations 1957 (1957 Act).
The plaintiffs countered that they were not time-barred from joining Google, as once Google was put on notice of the defamatory content and refused to remove it, it became a secondary publisher and thus liable for the publication of the defamatory content. They argued that time began to run against Google from the date of their refusal to remove the allegedly defamatory material (26 March 2021). They filed their motion to join Google within three days of that accrual. They also argued that their main action against the defendant was in time, and they should be able to join Google for gross negligence, for which they are not time-barred.
The applicable principles
In general, the courts will allow a plaintiff to join a person against whom a right to relief is alleged to exist. However, the court can refuse to join a party to proceedings where the proceedings are "manifestly" statute barred and joining the proposed defendant would be futile. Although a court, on a procedural application such as one to join a co-defendant, will not enquire into whether claims are statute-barred, it may examine the issue if the claim is clearly statute barred, and the defendant is not prevented from relying on the Statute of Limitations. These conditions were described by Hyland J as being a "high bar" to surmount.
The limitation period for defamation claims
Section 11(2)(c) of the 1957 Act provides that the limitation period for defamation actions is one year from the date on which the cause of action accrued. This limitation period is extendable for a maximum of two years.
As to the date of accrual of the cause of action, in the case of defamatory material published online, section 11(3B) of the 1957 Act states that the cause of action accrues on the date when the material is first capable of being viewed or listened to through that medium.
The decision
Hyland J found, on the plaintiff's own case, that the cause of action accrued on 23 June 2018, the date the video was uploaded onto YouTube, i.e., the date the defamatory statement was first published. Therefore, the plaintiffs' claim against Google was "manifestly" statute barred under section 11(3B) of the 1957 Act.
With regard to the specific wording of section 11(3B), Hyland J found that the plaintiffs' argument that the date of publication was when Google failed to take the video down was immaterial to the accrual of the cause of action under that section.
Hyland J also rejected the arguments based on gross negligence, as it was not pleaded in the Proceedings.
Conclusion
The decision is a reminder of the exceptional discretion exercisable by a court in applications to join parties to proceedings. The default position is that the party should be joined, but where the case against the proposed co-defendant is manifestly statute barred, and it is clear that the proposed co-defendant will rely on the 1957 Act should they be joined, the court will exercise its exceptional jurisdiction and refuse to join them.
The strict interpretation applied by Hyland J to section 11(3B) of the 1957 Act, which states that the accrual of a cause of action involving allegedly defamation material on the internet is the date on which the material can be viewed or listened to, means that parties must act quickly in instituting proceedings or seeking to join parties. Otherwise, they risk falling foul of the section's specificity.
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