X v Google Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 08 February 2023
• Neutral Citation: [2023] IEHC 56
• Court: High Court
• Docket Number: [2020 No. 1480 P]

Between:

X

Plaintiff

and

Google Ireland Limited

Defendant

[2023] IEHC 56

[2020 No. 1480 P]

THE HIGH COURT

Time limit – Cause of action – Bound to fail – Defendant seeking an order dismissing the plaintiff’s proceedings – Whether the proceedings were issued outside the time limit prescribed by s. 11(2)(c) of the Statute of Limitations 1957

Facts: The plaintiff, by way of plenary summons of 24th February 2020, commenced a claim against the defendant, Google Ireland Ltd (Google), seeking the following reliefs: (a) damages for having permitted the publication on their websites for many years of diverse defamatory statements about the plaintiff, in particular having regard to his requests for the deletion of same, in breach of their statutory duty; and (b) damages for breach of the plaintiff’s general constitutional rights. By notice of motion of 19th April 2021, Google applied to the High Court seeking the following reliefs: (1) an order dismissing the plaintiff’s proceedings, being proceedings which were issued outside the time limit prescribed by s. 11(2)(c) of the Statute of Limitations 1957 (as amended by s. 38 of the Defamation Act 2009); (2) further and/or in the alternative to the foregoing, an order pursuant to O. 19, r. 28 RSC striking out the plaintiff’s claim in the proceedings for failure to disclose a reasonable cause of action as against the defendant; (3) in the alternative to the foregoing an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff’s proceedings as against the defendant, being proceedings which were bound to fail; as well as certain ancillary reliefs.

Held by Barrett J that it did appear as if the plaintiff was hoping to sue over allegedly defamatory material that had ‘timed out’ under the Statute of Limitations. Barrett J held that the fairest way to proceed was to allow the plaintiff to proceed with his defamation claim insofar as it related (if it related at all) to material in respect of which such claim could be brought under s. 11(2)(c)(i) of the 1957 Act as of the date of his summons, subject to that claim being properly pleaded and a related application to amend the pleadings proving successful. Barrett J noted the text from pp. 683-684 of Delany and McGrath on Civil Procedure (4th ed.) in which the authors pointed to how the restraint that judges have traditionally shown when treating with strike-out proceedings has also led to judges declining to order a strike-out where it is possible that an amendment to pleadings might remedy whatever deficiency has been identified. Barrett J considered that there was enough in what was before him for the most just course of action to be that he stay the proceedings for six weeks so as to give the plaintiff time to amend his pleadings as he saw fit and then bring application for any amendments that he may propose to be allowed. As to whether the defamation proceedings were bound to fail, Barrett J could not conclude that they were bound to fail. Barrett J stated that the constitutional law point and also the claim as to breach of data protection legislation were entirely deficient in terms of how they were pleaded and unless they were amended (and a related application to amend was successful) the pleadings would be struck out.

Barrett J refused Google’s application.

Application refused.

Summary

This is an application by Google in which it seeks that the court strike out Mr X's action against Google.

JUDGMENT of Mr Justice Max Barrett delivered on 8 ^th February 2023 .

A. The ‘Distressing Material’

1 . There is material on the internet saying that Mr X is involved in the disappearance of a particular child and that he has drugged women and brought them back home for his sexual gratification. (I refer to that material in this judgment as the ‘Distressing Material’.) Mr X says that the Distressing Material is untrue. However, it is so damaging that I have chosen to anonymise Mr X's name, rather than add to his woes by giving further prominence to his name.

2 . I can understand why Mr X is so upset if what is being written about him is untrue. He is not just upset because the thought of having horrible things written about oneself is horrible. He feels that people have read things about him online and are shunning him as a consequence. He has also expressed concern for his personal safety (a purported home address has been published online). He maintains too that his business has suffered as a result of the things that have been stated about him in the Distressing Material.

B. Procedural Background

3 . By way of plenary summons of 24 ^th February 2020, Mr X, who is self-represented, commenced a claim against Google seeking the following reliefs:

• “ (a) Damages for having permitted the publication on their websites for many years of diverse defamatory statements about the plaintiff, in particular having regard his requests for the deletion of same, in breach of their statutory duty…

• (b) Damages for breach of the plaintiff's general constitutional rights”.

4 . In his statement of claim, Mr X observes, amongst other matters, as follows:

“ (5) The defendant has knowingly permitted, for many years, the publication of online third party content that is very seriously defamatory of the plaintiff.

(6) The said online third party content is also in breach of the plaintiff's general constitutional rights and his rights under various data protection legislation.

(7) Despite many requests over the years and, in recent times, for example, his correspondence to the defendant of 20 ^th August 2019 and the 17 ^th October 2019, the defendant has significantly failed to modify or amend the said online content”.

5 . Mr X then summarises the content of the Distressing Material and proceeds as follows:

“ Particulars of Loss and Damage

The plaintiff has been so defamed by the intentional actions of the defendant that his reputation in the eyes of right-thinking members of society has been irreparably damaged.

The Plaintiff Seeks the Following Reliefs

(a) The removal of all online third party content relating to him by the defendant.

(b) Compensation.”

6 . By notice of motion of 19 ^th April 2021, Google has come seeking, the following reliefs:

as well as certain ancillary reliefs.

• “ 1. An Order dismissing the plaintiff's herein, being proceedings which were issued outside the time limit prescribed by section 11(2)(c) of the Statute of Limitations 1957 (as amended by s.38 of the Defamation Act 2009).

• 2. Further and/or in the alternative to the foregoing, an Order pursuant to O.19, r.28 RSC striking out the plaintiff's claim in these proceedings for failure to disclose a reasonable cause of action as against the defendant.

• 3. In the alternative to the foregoing an order pursuant to the inherent jurisdiction of this honourable court dismissing the plaintiff's proceedings as against the defendant, being proceedings which are bound to fail”,

7 . I note and accept as a true statement of the position at law when it comes to strike-out proceedings, the following observations made in Delany and McGrath on Civil Procedure (4 ^th ed), p. 677:

“ The constitutional right of access to the courts which is guaranteed by Art.40.3 has been interpreted as encompassing the right ‘to litigate claims which are justiciable’ and to ‘initiate litigation in the courts’. However, it is necessary for the courts to balance the constitutional rights of plaintiffs to institute and prosecute proceedings with the interest of defendants who should not be forced to defend proceedings that are vexatious or bound to fail.”

C. The Right to Seek Delisting/Be Forgotten

8 . Mr X has engaged with Google since at least 2015 seeking to invoke his right to seek to be delisted, as identified in the seminal decision of the Court of Justice in Case C-131/12 Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (ECLI:EU:C:2014:317) (the so-called ‘ Costeja’ case) and the right to be forgotten under Art.17 of the GDPR Regulation. 1

9 . A problem that seems to have arisen is that Mr X, as he stated in court, is only “ semi-literate” (his wording) when it comes to using computers and/or the Internet. (Mr X, I note, is an elderly gentleman. Physically he gives the impression of being in his late 60s or early 70s. The pleadings do not indicate his exact age.) In the past Mr X has made complaints about certain URLs which Google (on 20 ^th June 2015) indicated that it was not satisfied to delete and then (on 26 ^th July 2018) indicated itself already to have deleted. (A ‘URL’ or ‘Uniform Resource Locator’, the evidence before me indicates, is a unique string of characters which acts as a precise set of directions identifying the exact location of a webpage on the internet).

10 . I do not know what the substance of the material was to which the just-mentioned delisted links provided access. However, in successive emails that he has written since July 2018 Mr X has written various vexed (sometimes very vexed) emails to Google to the effect that the Distressing Material is online (one or more links to it come up when one googles his name) and he wants it removed. At points he seems to think that Google has placed or is maintaining in place the Distressing Material. This is not what Google is doing. It is a so-called ‘search engine’, it brings up various URLs when one googles Mr X's name, and via at least one of those links one can access the Distressing Material. I am unaware of any basis (and none is asserted by Mr X) on which Google could modify or amend third party web content.

11 . It is not entirely clear to me why Mr X cannot provide whatever URL/s he finds offensive. His view seems to be that Google has his name, address, and telephone number and should therefore be able to act on his complaint (that people continue to be...