knowledge 31 July 2025 |

Defamation Law Update: Gilroy v O’Leary and Google Ireland

The Court of Appeal considered whether the claim against Google was statute-barred by virtue of the combined effect of sections 11(2)(c) and 11(3B) of the Statute of Limitations 1957 (“the Statute of Limitations”), as inserted by sections 38(1)(a) and 38(1)(b) of the Defamation Act 2009 (“the 2009 Act”) and if Google could be joined as a defendant in the proceedings. Section 38(1)(a) of the 2009 Act provides that a defamation action shall not be brought after the expiration of 1 year, or where directed by the Court, a period not exceeding 2 years. Section 38(1)(b) notes that the Court shall not give such a direction unless it is satisfied that:

1. “the interests of justice require the giving of the directions,
2. he prejudice that the plaintiff would suffer prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,”

This means that the Court must have regard to the reason for the failure to bring the action within the 1-year period and the extent to which any relevant evidence is, by virtue of the delay, no longer capable of being adduced.²

Google argued that the appellants' cause of action accrued on 23 June 2018 when the offending video was first posted on YouTube and that any action against Google was required to have commenced (at latest) by 22 June 2020. The appellants’ proceedings commenced against the original poster of the video on 29 June 2018, however, the application to join Google was not made until 12 December 2022, following various letters from the appellants to Google between 2021 and 2022.

Ultimately, the Court of Appeal concluded that the matter was not sufficiently clear cut to refuse the joinder at that stage of the proceedings and emphasised that it was not expressing a view on the ultimate outcome of the limitation issue, which it said should be resolved either at trial or as a preliminary issue. Consequently, the case was remitted back to the High Court for further proceedings.

The Court of Appeal Judgment

The Court of Appeal examined when intermediary service providers (“ISPs”) become liable as a "publisher" for defamation purposes, considering English and Australian case law on internet platforms cited by the appellants.

In Tamiz v Google Inc [2013] 1 WLR 2151³, an English case, the plaintiff complained about alleged defamatory comments posted on a blog hosted on Blogger.com, a platform operated by Google. The Court of Appeal of England and Wales held that if Google is notified of such comments and fails to remove defamatory material within a reasonable time, it could be liable as a "secondary" publisher.

In Google Inc v Duffy [2017] SASCFC 130⁴, the Supreme Court of South Australia held that Google did not become liable as a publisher until after it was put on notice of the offending material. Kourakis CJ explained that Google's search results are published when a person making a search views them on their device. Google does not have any practical ability to review the content of the search results before they are displayed. The Court emphasized that Google should be regarded as a secondary publisher of its search results and knowledge of their defamatory content should not be attributed to it until notice is given. The Court further stated that Google could only be held liable for publications made after it had been notified and had reasonable time to act. Kourakis CJ limited Google's liability as a publisher to the results of searches made only after it was put on notice. The Court reasoned that although Google did not write the material, it facilitated its publication by designing the programme that generated the snippet. Since Google was aware of the defamatory nature of the material and refused to remove it, it could not claim innocent dissemination. Thus, Google was liable under Australian law as a secondary publisher of defamatory content.

These English and Australian authorities set out that where a case is brought against a service provider, such as Google, unless and until it has been given notice of the material in question and is asked to take it down, it does not become a publisher of the material posted on its platforms.

In its judgment, the Court of Appeal also considered the appropriate interpretation of the 2009 Act and the Statute of Limitations, focusing on when the cause of action accrues for defamation involving internet platforms.

The Court of Appeal considered various potential dates for the accrual of the cause of action, including:

1. After receipt of the appellants' detailed letter on 18 October 2022,
2. Earlier dates when previous complaints were made to Google,
3. When an online YouTube dispute resolution process was used, and
4. When the video first became accessible on YouTube on 23 June 2018.

The Court of Appeal accepted that the appellants had a stateable argument that Google did not become liable as a publisher until either (a) receipt of the letter of 18th October 2022, or (b) the expiration of a reasonable time thereafter in which to remove the offending material. On either basis, it appears that, in the Court’s view, there is an argument that publication did not occur until sometime after October 2022, rather than in June 2018. The Court emphasised that the case law suggests that Google / a service provider such as Google, is not regarded as a publisher merely by reason of the fact that the material was made available on its platform and became capable of being viewed there by anyone accessing the platform on the internet. On that basis, it could be argued that the appellants’ claim against Google was not statute-barred.

The Court of Appeal noted that, “it may well, ultimately, be the case that Google will be found to have been right on that issue. However, there are contrary arguments that can be advanced.” 

As noted above, the Court of Appeal concluded that it would not refuse a joinder at this stage of the proceedings and the case was remitted back to the High Court.

Conclusion

The Court of Appeal in Gilroy v O’Leary and Google Ireland did not resolve the substantive question of when the limitation period begins to run against ISPs in defamation proceedings. Instead, the Court held that it was not manifestly clear that the claim against Google was statute barred, given the arguable case that Google only became a publisher, and thus potentially liable, after being notified of the allegedly defamatory content and failing to act within a reasonable time. The Court emphasised that, where there is a credible argument on the limitation issue, it is inappropriate to refuse joinder at the procedural stage and that such questions should be determined at trial or by way of a preliminary issue.

The judgment therefore leaves the core legal issue open, making clear that the accrual of a cause of action in online defamation, particularly as it relates to ISPs, remains unsettled and fact sensitive. The Court’s approach demonstrates that the interaction between publication, statutory limitation provisions and the conduct of internet intermediaries is a matter for detailed examination by the trial court, rather than summary determination at the joinder stage.