Portakabin Limited granted a Norwich Pharmacal order to identify Gmail account controller

In July 2021 Portakabin Limited sought an order from the High Court-a Norwich Pharmacal order-forcing Google Ireland to disclose information about the user of a Gmail account. The Gmail account had been used to defame Portakabin and damage Portakabin’s business.

A number of people, including Portakabin’s customers, had received emails from this email account with a signature “John Smith”. The emails claimed that Portakabin was having difficulty with obtaining regulatory approval for its products. The emails were sent to customers of Portakabin and were defamatory.

Prior to the emails letters had been sent making allegations of criminal misconduct against Portakabin and its management.

The purpose of the application for the Norwich Pharmacal order was to assist Portakabin in bringing legal proceedings for defamation against the sender of the emails. If the sender was an employee, then disciplinary proceedings would also be instituted.

It turned out the Judge received an anonymous letter from “John Smith” who identified himself as a whistle-blower and asked that his identity not be disclosed and that he had deleted the Gmail account and there would be no further communications from it.

The Judge went on to look at the legal principles involved in the application in this case.

The principles are 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 is sufficient, as Kelly J. put it in EMI Records Ireland Ltd. v. Eircom Ltd. [2005] 4 I.R. 148 that the plaintiff should make out a prima facie case of wrongful activity, or as Ryan P. put it in O’Brien v. Red Flag Consulting Limited [2017] IECA 258, a strong prima facie case.”

Counsel for the plaintiff drew the court’s attention to the case of Board of Management of Salesian Secondary College (Limerick) v Facebook Ireland Limited [2021] IEHC 287 which saw the Judge in that case referring certain questions to the Court of Justice of the European Union.

Those considerations did not arise in this case as that application was brought for the purpose of disciplining students, not commencing legal action.

In the instant case the purpose was to protect the reputations and good name of Portakabin by instituting legal proceedings for damages.

As for the claim of being a whistle-blower immunity from civil liability arising from making a protected disclosure the Protection of Protected Disclosures 2014 expressly excepts a defamation action.

Justice Allen also observed that the fact that a person declares he is a whistle-blower does not necessarily bring himself withing the Protected Disclosures Act 2014.

The Judge granted the order sought-that is, directing Google Ireland to provide such information as it has in its possession as to the owner/operator of the email account which was responsible for the defamatory emails.

Read the full decision of the High Court here.