An Irish company has got a High Court order making a Swiss-based online anonymous email address provider liable for a defamation award.
DRM Contract Administration Ltd, Laghy, Co Donegal, sued Geneva-based Proton Technologies AG for up to €10m for defamation arising out of two emails published under the address "ConcernedTaxPayer1@protonmail.com" in which false allegations of fraud and extortion were made.
On Thursday, Mr Justice Charles Meenan granted DRM judgment in default of appearance against Proton.
The level of damages will be decided later. There was no appearance on behalf of Proton.
Colm Smyth, with Sean Corrigan, counsel for DRM, said his client was involved in engineering works with another company which is contracted to Donegal County Council in the upkeep of the county's road network.
The two anonymous emails were sent in May and August 2018 to various people involved in road projects in Donegal.
They were also sent, it is claimed, to "persons of influence" including journalists, politicians and prominent members of Donegal County Council and in particular to a member of the Dáil's Public Accounts Committee (PAC).
The emails falsely claimed his client was misusing taxpayers money and engaged in fraud and extortion, counsel said.
They also claimed his client engaged in stalking meaning essentially that he was seen at various sites in the county, he said.
DRM claimed Proton facilitated their secret clients to clandestinely publish the defamatory emails.
The defendant neglected and or failed to take reasonable care to prevent their rogue clients from damaging DRM's good name, business interests and right to privacy. it was claimed.
Mr Smyth said Proton refused to engage when proceedings were served on it.
The only correspondence was a letter from a Proton in-house lawyer who said they (Proton) "do their very best to ensure this does not happen", counsel said.
Proton also claimed that they were not responsible for isolated users. They refused to identify their client(s), citing article 271 of a Swiss criminal code as their grounds.
This code was introduced in Switzerland in the 1930s to secure banking privacy interests.
DRM claimed the publication of these emails was within the control of the defendant who neglected and/or failed to have sufficient systems in place to automatically detect and prevent their secret account holders from mischievously publishing dishonest and corrupt material.
Proton knew or should have known they created " a happy hunting ground for unscrupulous entities to secretly publish corrupt and dishonest defamatory material," it was also claimed.
Mr Smyth said despite voluminous correspondence, the defendant failed to enter an appearance in response to proceedings being served and failed to enter a defence.
Proton also failed to respond to or comply with another High Court order obtained by DRM in January 2019 that they reveal the identity of the email account holder(s).
As there was now no appearance in court, Mr Smyth sought judgment in default of appearance.
Mr Smyth agreed with the judge it would require oral evidence from witnesses for DRM before damages could be assessed.
The company had lost considerable business as a result of the damage caused by the emails, he said.
A judgment in default would be important for his client, counsel said.
The judgement and the later damages assessment could be enforced in Switzerland under the Lugano Convention, counsel said.
Mr Justice Meenan was satisfied the various proofs in relation to the case, including service of the proceedings on the defendant, were in order.
He said damages would be assessed later on by a judge sitting alone when circumstances in the courts change to allow witnesses give evidence again.
He also granted costs to DRM.