The recent High Court (Court) decision in Portakabin v Google IEHC 446 is illustrative of the approach of the Irish courts to NPOs. In Portakabin, the Court granted an application by Portakabin (applicant) for an NPO (application), which required Google to disclose subscriber information associated with a Gmail account that was allegedly spreading defamatory material about the company. The email account was allegedly used to damage the company’s business by making false accusations directly to the applicant’s customers.
Background in brief
The applicant was a well-known supplier of temporary structures. In March and April 2021, emails were sent directly to the senior management of the applicant’s customers. These emails made several accusations including that the applicant was having difficulty getting regulatory approval for its products and that one of their senior staff members had resigned due to ongoing issues with product quality. There were further allegations that the applicant’s staff were incompetent, dishonest, and taking “back handers”. The email was signed John Smith – a presumed pseudonym. The applicant sought an NPO against Google in order to pursue legal action in respect of the alleged defamatory statements.
After the application was issued, the Court received a letter from the anonymous sender of the emails – John Smith, who asserted his status as a whistleblower. Mr Smith asked the Court to refuse to make an order that would give up his identity, confirming that there would be no further communication as the account had been deleted.
Interestingly, Google did not appear at the application. Instead it had corresponded with the applicant about the appropriate form of Order, which the Court noted was not unusual in such applications. Google also reserved the right to raise any further issues if the Court’s Order was not consistent with the approved draft Order.
The Court expressed its reservation as to whether Google was entitled not to contest the application, and then re-open proceedings if dissatisfied with the Court Order. In the circumstances of this case, nothing turned on this reservation, as the draft and Court Orders were not materially different. However, the Court’s comments are interesting and may suggest an appearance in court by a respondent is required.
The Court granted the NPO sought, subject to an undertaking that the applicant would only use the information to pursue the individual for defamation and/or redress.
Consideration of recent case law
The Court outlined that the jurisdiction to grant NPO’s was well established as observed in the Parcel Connect decision (discussed in Part I). The Court also considered the Board of Management Salesian Secondary College (Limerick) v Facebook IEHC 287 case, but distinguished it on the basis of the reasons for the NPO application. In Salesian, the school sought the identity of the person in question for the purpose of disciplinary action only. The Court noted that the applicant may seek to take disciplinary action, should John Smith transpire to be a whistleblowing employee, the main focus of the application was to pursue a remedy for the alleged defamation and wrongful damage to the applicant’s business.
The Court also considered whether the Protected Disclosures Act 2014 (Act) protected the email account holder where they described themselves as a whistleblower. The Court held that a person could not bring themselves within the meaning of the Act simply by declaring themselves a whistleblower. It was also noted that immunity from civil suit for making a protected disclosure did not include defamatory comments which are expressly excluded from the Act. The Act did not prevent a person from bringing proceedings to vindicate their good name, which was dependent on identifying the person who made the allegedly defamatory statements.
There are some significant observations arising from the Portakabin decision:
- If a respondent does not attend the NPO application, it may be estopped from reopening the proceedings if unsatisfied with the order made.
- Portakabin was distinguished from Salesian Secondary College despite the potential disciplinary aspect. However, the purpose of the NPO in Portakabin was to pursue a remedy against defamatory statements.
- There is no automatic protection for persons from identification in such circumstances by simply declaring themselves to be a whistleblower.
Contributed by Adele Hall & Conor Hurley