Gilroy & Anor v O'Leary (Approved)

Factual and Procedural Background

This opinion concerns an application by the Plaintiffs to join Company A as a defendant in defamation proceedings arising from allegedly defamatory statements made by the Defendant in a video ("the Video") published on the video-sharing platform YouTube, a service provided by Company A. The Plaintiffs allege the Video was first published on 23 June 2018 and contains defamatory statements suggesting that the Plaintiffs promoted the use of Miracle Mineral Solution as a cure for autism, cancer, and AIDS. The Plaintiffs issued proceedings against the Defendant on 29 June 2018 and later sought to join Company A as a co-defendant due to its role as the platform provider. The application to join Company A was made by notice of motion initially on 29 March 2021 and subsequently reissued on 12 December 2022 following procedural requirements.

Legal Issues Presented

1. Whether the Plaintiffs’ claim against Company A is barred by the Statute of Limitations under the Statute of Limitations Act 1957, as amended by the Defamation Act 2009.
2. Whether the court should exercise its discretion to permit the joinder of Company A as a co-defendant despite the limitation period potentially having expired.
3. The proper date of accrual of the cause of action against Company A for defamation relating to internet publication.
4. Whether the Plaintiffs can rely on a later date of publication based on Company A’s refusal to remove the allegedly defamatory material after notification.
5. Whether a proposed amendment to plead gross negligence against Company A could affect the limitation issue or the joinder application.

Arguments of the Parties

Plaintiffs' Arguments

• The Plaintiffs contend that Company A should be joined as a co-defendant because once notified of the defamatory content and refusing to remove it, Company A becomes a secondary publisher and liable for the publication.
• They argue the cause of action accrued on a later date—specifically after Company A refused to remove the Video following notification, with initial notification letters sent in March 2021 and October 2022.
• The Plaintiffs assert that their motion to join Company A was filed promptly after these dates, and procedural delays should not extend or restart limitation periods.
• They rely on case law supporting secondary publisher liability for internet platforms notified of defamatory content but failing to act.
• The Plaintiffs also argue they are not time-barred in respect of the Defendant and propose that they could join Company A for gross negligence, which they claim would not be subject to the same limitation constraints.
• The Plaintiffs emphasize that no statutory timeframe limits when complaints can be made to Company A and invoke statutory provisions allowing multiple defamation actions in respect of multiple publications where the interests of justice require.

Company A's Arguments

• Company A argues that under section 11(3B) of the Statute of Limitations Act 1957, the cause of action accrued on the date the Video was first capable of being viewed or listened to on the internet, i.e., 23 June 2018.
• The applicable limitation period for defamation is one year, extendable to two years at the court’s discretion, making any claim against Company A time-barred as of 23 June 2020 at the latest.
• Company A contends that the Plaintiffs had knowledge of the Video shortly after publication and could have taken action within the limitation period but did not correspond with Company A until March 2021.
• They acknowledge that internet platforms can be secondary publishers if notified and failing to remove defamatory content but maintain that the limitation period runs from the original publication date, not from refusal to remove.
• Company A submits that the joinder application is manifestly futile and an abuse of process because the claim is clearly statute barred.
• They dispute any claim for gross negligence, noting no such claim is pleaded and no application to amend pleadings has been made.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the exceptional nature of the jurisdiction to refuse joinder and emphasized that the default position favors joinder of parties. However, the court found that the claim against Company A is manifestly statute barred under the Statute of Limitations Act 1957 as amended by the Defamation Act 2009. Section 11(3B) clearly establishes that the cause of action accrues on the date the defamatory statement is first capable of being viewed or listened to through the internet, which in this case is 23 June 2018. The court rejected the Plaintiffs’ argument that the cause of action accrued on the later date of refusal to remove the Video, finding that the legislation’s wording precludes such an interpretation.

The court considered the Plaintiffs’ reliance on cases supporting secondary publisher liability but held that even if Company A became a secondary publisher, the limitation period still runs from the original publication date. The Plaintiffs were aware of the Video shortly after publication, as evidenced by their prompt initiation of proceedings against the Defendant, yet delayed any action against Company A until years later.

The court also noted the Plaintiffs’ suggestion to amend pleadings to include a claim for gross negligence but declined to consider this as no such claim was currently pleaded or formally applied for. The court found no basis to extend or restart the limitation period and concluded that joining Company A would be futile and an abuse of process.

In applying the principles from the cited authorities, the court found the cumulative conditions for refusing joinder were met: the claim against Company A is manifestly time barred; Company A intends to rely on the statute of limitations; and there are no circumstances preventing reliance on the limitation defence.

Holding and Implications

The court REFUSED the Plaintiffs leave to join Company A as a co-defendant in these proceedings.

The direct effect of this decision is that the Plaintiffs cannot pursue their defamation claim against Company A due to the expiration of the statutory limitation period. No new legal precedent was established, and the ruling reaffirms the strict application of limitation periods to internet publications under the relevant statutory provisions. The court scheduled a subsequent hearing for submissions on costs related to this decision.