The Growth Of Norwich Pharmacal Orders: Part II - The High Court Decision In Portakabin v Google

• Published date: 13 August 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation, Whistleblowing
• Law Firm: William Fry
• Author: Mr Paul Convery and Adele Hall

The recent High Court (Court) decision in Portakabin v Google [2021] IEHC 446 is illustrative of the approach of the Irish courts to NPOs. In Portakabin, the Court granted an application by Portakabin (applicant) for an NPO (application), which required Google to disclose subscriber information associated with a Gmail account that was allegedly spreading defamatory material about the company. The email account was allegedly used to damage the company's business by making false accusations directly to the applicant's customers.

Background in brief

The applicant was a well-known supplier of temporary structures. In March and April 2021, emails were sent directly to the senior management of the applicant's customers. These emails made several accusations including that the applicant was having difficulty getting regulatory approval for its products and that one of their senior staff members had resigned due to ongoing issues with product quality. There were further allegations that the applicant's staff were incompetent, dishonest, and taking "back handers". The email was signed John Smith - a presumed pseudonym. The applicant sought an NPO against Google in order to pursue legal action in respect of the alleged defamatory statements.

After the application was issued, the Court received a letter from the anonymous sender of the emails - John Smith, who asserted his status as a whistleblower. Mr Smith asked the Court to refuse to make an order that would give up his identity, confirming that there would be no further communication as the account had been deleted.

The Decision

Interestingly, Google did not appear at the application. Instead it had corresponded with the applicant about the appropriate form of Order, which the Court noted was not unusual in such applications. Google also reserved the right to raise any further issues if the Court's Order was not consistent with the approved draft Order.

The Court expressed its reservation as to whether Google was entitled not to contest the application, and then re-open proceedings if dissatisfied with the Court Order. In the circumstances of this case, nothing turned on this reservation, as the draft and Court Orders were not materially different. However, the Court's comments are interesting and may suggest an appearance in court by a respondent is required.

The Court granted the NPO sought, subject to an undertaking that the applicant would only use the information to pursue the individual for defamation...