Portakabin Ltd and Portakabin (Ireland) Ltd v Google Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 02 July 2021
• Neutral Citation: [2021] IEHC 446
• Docket Number: [2021 No. 3775P.]
• Year: 2021
• Court: High Court

Between

Portakabin Limited and Portakabin (Ireland) Limited

Plaintiffs

and

Google Ireland Limited

Defendant

[2021] IEHC 446

[2021 No. 3775P.]

THE HIGH COURT

JUDGMENT of Mr. Justice Allen delivered on the 2nd day of July, 2021

Introduction

1 This is an application for a so-called Norwich Pharmacal order directing the defendant, Google Ireland Limited, to provide the plaintiffs' solicitors with the subscriber registration information associated with a Gmail account, irishpeople2021@gmail.com. The plaintiffs' object in seeking the order is to discover the identity of the person or persons responsible for sending e-mails to the plaintiffs' customers which are said to be defamatory of the plaintiffs and damaging to their businesses. Besides, the plaintiffs hope to identify the person or persons responsible for the sending of anonymous letters to the plaintiffs' customers and management.

The application

2 The first plaintiff is an English registered company which is in the business of providing modular buildings and portable cabins. The second plaintiff is the Irish registered subsidiary of the first plaintiff, operating in Ireland. The defendant is a technology company which offers a variety of services, including a free e-mail service known as Gmail.

3 On 10th March, 2021 and 8th April, 2021 a number of the plaintiffs' customers received e-mails from a Gmail account irishpeople2021@gmail.com. The author of the e-mails signed himself or herself “ John Smith” which the plaintiffs believe, not unreasonably, is a pseudonym. The e-mails were addressed by name to senior managers in the plaintiffs' customers and were sent to the specific e-mail addresses of those executives. The e-mails suggested, variously, that the plaintiffs were having difficulty obtaining regulatory approval for its products, that they did not meet the prescribed specifications and standards, and that one of the plaintiffs' senior managers had resigned because of ongoing issues which he was said to have had with the quality of the plaintiffs' products.

4 These e-mails are thought by the plaintiffs to be part of a wider chain of events dating back to October, 2020 when anonymous letters were sent to the plaintiffs' customers and management which are said to have contained allegations of criminal misconduct against various identified individuals. Those allegations were the subject of an external review which found no evidence to substantiate any of them and the plaintiffs' belief is that they were untrue. The first plaintiff has engaged an external forensic and integrity services provider who had opined that there is a strong likelihood that the e-mails and letters were written by the same person.

5 The plaintiffs' case is that the letters and e-mails are seriously defamatory of the plaintiffs, their executives, and third parties, and damaging to the reputation and business of the plaintiffs. Their object in seeking to establish the identity of the author is to bring legal proceedings against him or her for damages. If, as is thought may very well be the case, the author is a Portakabin employee, the plaintiffs intend to take appropriate disciplinary steps against him or her.

6 The plenary summons in this case was issued on 19th May, 2021 and on the same day I heard an ex parte application for an early return date for the motion, which was made returnable for 8th June, 2021. There must have been a newspaper report of the ex parte application because, in the meantime, I was sent an anonymous letter, the fact and content of which I brought to the attention of counsel on the hearing of the motion.

7 The author of the letter identified himself or herself as the “ whistleblower” behind the e-mails sent using the alias John Smith. The author sought on the one hand to justify the communications and on the other offered an assurance that there would be no further communications to the plaintiffs' customers and that the Gmail account which had been used had been deleted. The author expressed apprehension of the consequences of being identified and asked that I would not to give up his or her identity.

8 Not unusually in these applications, the defendant did not appear but corresponded with the plaintiffs' solicitors as to the form of order which the court might be asked to make and spelling out its intention as to what it would do in the event that an order were to be made. The language used by the defendant's legal department was a little imprecise inasmuch as it indicated that if and when an order was made and served it would notify its subscriber of “ the request” so that its subscriber would have an opportunity to seek relief from the order but in the circumstances, I was content to proceed on that basis.

9 There was a further caveat in Google's correspondence to the effect that if any order made was not consistent with the draft which had previously been reviewed, it reserved the right to raise any positions relevant to the issue, with which I was not entirely satisfied was a position which it was entitled to take. While it must be acknowledged that the defendant has dealt very efficiently with the application, has set out its position very clearly in correspondence, and – as is usual on these applications – has not sought an order for costs, I am not entirely convinced that it is correct in principle that a defendant should allow an application to go uncontested on the basis that it will apply to re-open any order with which it might be dissatisfied. As far as the instant application is concerned, there was no material difference between the terms of the draft order to which the defendant had in correspondence signified its agreement and the order which, in the event, the court was satisfied to make so the issue did not arise.

Legal principles

10 As I observed in Parcel Connect Limited T/A Fastway Couriers v. Twitter International Company [2020] IEHC 279, at para. 14, the jurisdiction of the court to make an order of the type now sought is well established:-

“… It was recognised by the Supreme Court in Megaleasing UK Ltd. v. Barrett [1993] ILRM 497. Finlay C.J., in a judgment in which all of the members of the court concurred, noted that Viscount Dilhorne in Norwich Pharmacal had traced the jurisdiction back to Orr v. Diaper (1876) 4 Ch. D. 92. McCarthy J. traced the jurisdiction in Ireland back to the Supreme Court of Judicature Act (Ireland) 1877. The court was unanimous that the power to make such an order was one which is to be exercised sparingly. The judgments in Megaleasing UK Ltd. spoke of a threshold test that the plaintiff was required to establish a very clear and unambiguous case of wrongdoing, but as Humphreys J. recently explained in Blythe v. Commissioner of An Garda Siochana [2019] IEHC 854, certainty or a high degree of certainty is not required. Rather it...