Gilroy v O'Leary
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 01 February 2019 |
| Neutral Citation | [2019] IEHC 52 |
| Court | High Court |
| Docket Number | [2018 No. 5903 P.],[2018 No. 5903 P] |
| Date | 01 February 2019 |
[2019] IEHC 52
THE HIGH COURT
Allen P.
[2018 No. 5903 P.]
AND
Defamation – Interlocutory injunction – Legal threshold – Plaintiff seeking interlocutory injunction – Whether plaintiff satisfied the legal threshold for the granting of an order pursuant to s. 33 of the Defamation Act 2009
Facts: The first plaintiff, Mr Gilroy, applied to the High Court for an interlocutory injunction requiring the defendant, Ms O’Leary, to remove from social media and all other platforms a video said to be defamatory of him.
Held by Allen P that the first plaintiff failed to satisfy the legal threshold for the granting of an order pursuant to s. 33 of the Defamation Act 2009.
Allen P held that the first plaintiff’s application for an order for the removal of the video must be refused.
Application refused.
This is an application by the first plaintiff, who represents himself, for an interlocutory injunction requiring the defendant to remove from social media and all other platforms a video said to be defamatory of him.
On or shortly before 23rd June, 2018 the defendant made a fifteen-minute homemade video recording which she posted on YouTube under the title ‘ the Sovereign Movement and its links to MMS Bleach’.
The plaintiffs took the view that the video was defamatory of them and on 29th June, 2018 issued a plenary summons claiming damages for defamation and an order requiring the defendant to take down the video and some unidentified ‘ offending blogs’.
By notice of motion issued on 10th August, 2018 the first plaintiff, only, applied for a variety of interlocutory orders, principally an order directing the defendant to remove the video from YouTube.
The notice of motion seeks orders in relation to both plaintiffs. The first plaintiff is not entitled to do that and I will deal with the motion on the basis that it is the application of the first plaintiff, and the first plaintiff alone.
Besides an order for the removal of the video, the notice of motion asks for a number of impossibly broad and vague orders, such as restraining all persons with notice of the making of the order ‘ from contacting any person known or unknown or doing business with the plaintiffs, if the purpose of such contact is to further defame or cause harm to the plaintiffs’ and ‘ directing the defendant, her servants and/or agents and all other persons having notice of the making of the said order and their servants or agents, to remove immediately, all videos … where she speaks about the plaintiffs or other videos where she indicates, implies or where it could be construed that she is referring to the plaintiffs’ and an order for the publication of an apology and retraction. At the hearing before me, however, the focus was on the particular video.
The plaintiffs each describe themselves as ‘ one of the people of éire (sic.) and a businessman’. The defendant describes herself as a ‘ carer and voluntary autism and rights activist’.
MMS is an acronym for ‘ miracle mineral solution’. It is made by mixing a 28% sodium chlorite solution with citric acid. Miracle mineral solution is held out by its proponents as a medicine, capable of treating the entire spectrum of conditions and illnesses ranging from the common cold to HIV and cancer. In particular, as far as the defendant is concerned, it is held out as a cure or treatment for autism. Users are advised to take the solution orally or by enema.
Far from conjuring a panacea, the concoction of sodium chlorite and citric acid produces chlorine dioxide, which is a bleach. Unsurprisingly, MMS has been the subject of warning notices from the U.S. Food and Drugs Administration and the Health Products Regulatory Authority in Ireland.
It is common case that for some years the defendant has been campaigning on television, radio, newspapers, and on social media against MMS, and in particular against the propaganda that it is a treatment or cure for autism. The defendant's strongly held view is that the product is not only ineffective but harmful.
The defendant's declared object in making and posting the video recording was to establish a connection between the Sovereign Movement and MMS.
The defendant's case is that the plaintiffs are part of, or associated with, a loose organisation or movement known as the Sovereign Movement. The Sovereign Movement is said by the defendant to be a fringe group who reject the law of the State and believe that they are governed by their own set of rules and laws known as ‘ common laws’. Members or adherents of the Sovereign Movement are said to espouse pseudo law.
The first plaintiff denies that he is a member of, or has any knowledge of, the Sovereign Movement. His complaint, however, is not that the video links him to the Sovereign Movement per se but that the video links him, through the Sovereign Movement, to MMS and to ‘ what is going on’.
The first person mentioned in the video is the first plaintiff who, with another named man, was said to prey on vulnerable people in crisis situations ‘… like for example if someone was losing their home they can fight the courts …’. The defendant goes on to identify a man, said to be a member of the Sovereign Movement, who was prosecuted and convicted of manufacturing and selling MMS; then to identify the second plaintiff, who is said to advocate the product on an internet radio channel; then to identify a man said to have been selling MMS as a cure for autism; then to identify a woman said to have been ‘basically one of the worst quacks out there’; then to identify a man from Northern Ireland said to have been selling MMS as a treatment for autism; then a man called Reverend Rashers, said to be ‘ the big peddler of this bleach product’ and to be part of the Sovereign Movement; then to identify a man said to be involved in the Sovereign Movement, and said to be using MMS and advocating it for other conditions; and then a man called Reverend Carey. These so-called reverends are associated with the so-called Genesis II Church which, is said to be a non-religious church, whatever that is supposed to mean.
From time to time during the video the plaintiff is heard to recapitulate the names she has already mentioned. She does not on any occasion recall the name of the first plaintiff, although she frequently names the second plaintiff.
Along the way, the defendant suggests that everything those involved in the Sovereign Movement believe is based on quacks, conspiracy theory and paranoia and goes on to say that ‘ when you start torturing children with bleach then you need to be exposed so that's why I am making this video tonight’. Later she is heard to say that the second plaintiff ‘… and his cohorts enjoy that, and I mean that, they actually enjoy it … and we have the Sovereign Movement aiding and abetting this criminal behaviour, helping people to torture children and even probably involved in the making of this product.’
The first plaintiff's case is that the words used meant and were understood to mean:-
(a) That he is engaged in child torture;
(b) That he is engaged in child abuse;
(c) That he is engaged in the practice of procuring and distributing MMS;
(d) That he is engaged in the administration to children of MMS by forcibly putting bleach up children's back passages;
(e) That the first plaintiff enjoys and takes pleasure in harm and damage caused to children;
(f) That the first plaintiff is a child abuser and actually enjoys such depraved practices.
The first plaintiff's case is that he has nothing to do with MMS, and never had. As previously observed, he does not complain that the suggestion that he was involved with or a member of the Sovereign Movement, by itself, is defamatory of him.
The defendant's case is that the words she used did not bear and were not capable of bearing the meanings alleged by the plaintiff or any meaning defamatory of the plaintiff. She pleads that she is honestly of the opinion, and that is amounts to fair comment to suggest, that the Sovereign Movement is a cult and/or manifests cult-like characteristics and that the first plaintiff has rejected the laws of the State and the authority of the courts in representing adherents of the Sovereign Movement in repossession cases.
The first plaintiff submits that this application can be dealt with by simply applying the test laid down by the Supreme Court in Campus Oil v. Minister for Energy (No. 2) [1983] I.R. 88. There is, he argues, a fair issue to be tried. The defendant, he argues, could not possibly suffer any loss if she were ordered to take the video down but the damage to first plaintiff's good name, and the risk to his personal security, would be thereby limited. The first plaintiff offers an undertaking to pay damages to the defendant in the event that the action were to fail, but does not address the adequacy of an award of damages against the defendant as a sufficient remedy if the action were to succeed.
The law governing the making of orders prohibiting the publication or republication of defamatory statements is now to be found in s. 33(1) of the Defamation Act, 2009, which provides:
‘33. - (1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely
to succeed.
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that...
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