As discussed in our July 2024 article, the High Court in Gilroy and Byrne v O’Leary [2024] IEHC 349 applied section 11(3B) of the Statute of Limitations 1957 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 High Court, therefore, refused the plaintiffs’ application to join Google Ireland Limited (Google) as a defendant in its defamation proceedings. The plaintiffs appealed this refusal to the Court of Appeal, which overturned the High Court decision in a decision delivered on 24 February 2025.

Facts

The appellants claim they were defamed by a video posted on YouTube on 23 June 2018.  They instituted proceedings against the defendant on 29 June 2018.  They brought an application to join Google as a defendant to the proceedings on 12 December 2022, following the exchange of correspondence between them and Google throughout 2021 and 2022.  Although an application to join an additional defendant does not require notice to that party, the application to the High Court was, nonetheless, served by the appellants on Google. Google subsequently appeared at the hearing before the High Court and successfully opposed the application on the ground that the action against it was manifestly statute barred under the combined effect of s 11(2)(c) and s11(3B) of the Statute of Limitations 1957.

The issue before the Court of Appeal was whether the High Court correctly applied the principles set out in case law, including O’Connell v Building and Allied Trades Union and Others [2012] IESC 36, that on an application to join a defendant, the only question for a court is whether the claim against the intended defendant is very clearly or manifestly statute barred.  If there is doubt, the defendant should be joined; however, the court should ensure all evidence is before it so it can consider all the circumstances, including the conduct of all parties. The court retains a discretion not to join where it would be futile, founded on insufficient evidence, vexatious, or abuse of process.

Court of Appeal findings

The Court of Appeal began by noting the inappropriateness of determining questions of limitation on an application to join additional defendants, save where it is very clearly statute-barred, and the proposed defendant intends to rely on the statute as a defence.

In this case, the Court of Appeal accepted that the appellants’ claim against Google was not clearly statute-barred. In particular, it was arguable that the cause of action did not accrue until after Google received the appellants’ letter of 18 October 2022.  In this letter, the appellants requested Google to remove the video.  In contrast with previous letters, this gave significant detail about the appellants’ concerns over the video and why it was defamatory of them.

The basis for finding that the claim against Google was arguably not statute-barred

The appellants relied on English and Australian authorities in support of their position that in defamation cases involving a hosting service such as Google, in the absence of clear legislation to the contrary, the cause of action does not accrue until the hosting service can be said to have published the offending material. In their case, they contended this was after Google failed to take down the video within a reasonable time after their October 2022 letter. Google, on the other hand, argued that s 11(3B) is clear and that in the case of publication on the Internet, the cause of action accrues on the date when the offending material was first capable of being viewed or listened to through the Internet, such that the appellants’ claim against it was manifestly statute-barred.  (This position was the one accepted by the High Court).

The Court of Appeal referred to the definition of the tort of defamation in s 6(2) of the Defamation Act 2009, which makes it clear that publication is an inherent and necessary element.  It found that the Defamation Act 2009 must be read as a whole, requiring a court to consider the meaning of s 11(3B) in a manner that considers s 6(2). As such, no liability for the tort can arise until the person sought to be made liable publishes the defamatory material.  It suggested various potential dates for the accrual of the cause of action in this case, including:

• after receipt of the appellants’ detailed letter of 18 October 2022;
• earlier dates when the appellants made previous complaints to Google;
• when an online YouTube dispute resolution process was used; and
• 23 June 2018, when the video first became accessible on YouTube, the date that the plain words of s 11(3B) point towards.

Because the issue was not clear-cut, and the proceedings are at too early a stage to definitively determine that the claim against Google is “manifestly statute barred”, the Court of Appeal allowed the appellants’ appeal and reversed the order of the High Court refusing to join Google as a defendant.

Although the Court of Appeal did not decide when the cause of action against Google accrued, it nonetheless brings uncertainty into the debate around the accrual date of a cause of action in defamation proceedings against hosting services such as Google. If you want to discuss this in more detail or the implications of this decision for your business, please get in touch with Paul Convery or Adele Hall.

Contributed by Gail Nohilly