The High Court has refused Ben (otherwise Bernard) Gilroy and Vincent Byrne permission to add Google Ireland Limited as a defendant to their defamation proceedings against Fiona O’Leary, finding that the proposed claim against Google was manifestly time-barred.
In a judgment delivered on 5 June 2024, Ms Justice Hyland said the plaintiffs’ own pleadings placed the first publication of the allegedly defamatory video on YouTube on 23 June 2018. The video allegedly suggested that the plaintiffs promoted Miracle Mineral Solution as a cure for autism, cancer and AIDS. Those statements remain allegations; the court was deciding only the application to join Google, not the underlying defamation claim.
The plaintiffs argued that Google became a publisher after being notified of the video and refusing to remove it, so time should run from that refusal. They referred to requests to Google beginning in March 2021 and later correspondence, and argued that their application to add Google was within time. Google argued that the statutory clock ran from the date the video first became capable of being viewed online.
Hyland said section 11(3B) of the Statute of Limitations Act 1957 sets the accrual date for an internet defamation claim as the date the statement is first capable of being viewed or heard online. On the pleaded date of 23 June 2018, the ordinary one-year limitation period, which can be extended by a court to no more than two years, had expired by the time the motion to join Google was brought. The judgment refers to an initial motion issued on 29 March 2021 and a second motion, issued on 12 December 2022, which was before the court.
The judge said she was not deciding when Google might have become a publisher for the substantive defamation claim. Even if Google’s publication were said to begin when it refused a takedown request, she held that the statutory accrual date remained when the video first became viewable online. The court also noted that the plaintiffs had issued proceedings against O’Leary on 29 June 2018, showing they knew of the video within days of its alleged publication.
The plaintiffs also argued they could add a claim for gross negligence. Hyland declined to consider that proposed basis because negligence was not pleaded and no application to amend the pleadings had been made. She refused leave to join Google as a co-defendant and listed the matter for submissions on costs on 11 June at 2pm. The judgment did not determine the underlying defamation case or the costs issue.