The Court of Appeal has allowed Bernard Gilroy and Vincent Byrne to add Google Ireland Limited as a defendant to their defamation proceedings over a video posted on YouTube. It held that, at this stage, the claim against Google could not be said to be manifestly time-barred. The court did not decide whether Google was liable or whether the claim was ultimately brought within the limitation period.
The plaintiffs say Fiona O’Leary posted the video on 23 June 2018 and that it defamed them. They began proceedings against O’Leary six days later. In December 2022, they applied to add Google, which hosts YouTube. The High Court refused the application in June 2024, accepting Google’s argument that the claim was out of time because the video was first accessible online in 2018.
On appeal, the plaintiffs argued that Google’s potential liability as a publisher could arise only after it was notified of the alleged defamation and had a reasonable time to remove the video. They relied on a detailed complaint sent to Google on 18 October 2022. Google argued that the statutory limitation period ran from when the video first became capable of being viewed online.
The Court of Appeal said the ordinary approach is to allow a proposed defendant to be joined and leave limitation arguments for trial or a preliminary issue. A court may refuse joinder where the claim is clearly time-barred and the proposed defendant intends to rely on that defence. The judges found the plaintiffs had an arguable case that their claim against Google accrued after the detailed complaint, while stressing that this did not mean their argument was likely to succeed. The limitation issue remains unresolved.
The court set aside the High Court order and directed that Google be joined. It gave the plaintiffs 28 days from perfection of the order to issue an amended summons, and required an amended statement of claim within 28 days after service. Google will have eight days after service to enter an appearance and eight weeks after delivery of the amended statement of claim to file a defence. The court also indicated that the plaintiffs should recover properly incurred expenses and outlay for the High Court application and appeal, subject to adjudication if not agreed. Google may make written submissions on costs within 14 days of electronic delivery of the judgment.