Tamiz v Google Inc  EWCA Civ 68 – read judgment
The Court of Appeal has ruled that in principle, an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might be a “publisher” of this material, although in this case the probable damage to the complainant’s reputation over a short period was so trivial that libel proceedings could not be justified.
This interesting case suggests there may be an opening for liability of Google for defamation, if certain steps have been taken to fix them with knowledge of the offending statement. Mr Tamiz, who claimed to have been defamed by comments posted on the “London Muslim Blog” between 28 and 30 April 2011, appealed a decision in the court below to decline jurisdiction in his claim against the respondent corporation and to set aside an order for service of proceedings on Google out of the jurisdiction.
Google Inc provides a range of internet services including Blogger, a service based and managed in the USA but available worldwide. Blogger is a platform that allows any internet user in any part of the world to create an independent blog. On Blogger, Google operates a ‘Report Abuse’ feature . There are a number of grounds for reporting abuse, and users have to select one of these. If the user selects ‘Defamation/Libel/Slander’, which happened in this case, a second screen is displayed, informing the user that the service is operated in accordance with US law, and that defamatory material will only be taken down if it has been found to be libellous (i.e. unlawful) by a court. The reason for this policy is that under US law Google is not a publisher of third party content hosted on the blog platform. US law works on the basis that claimants must raise their defamation issues directly with the author of the material, not third party service providers such as the blog service in this case.
Mr Tamiz’s complaint reached Google two months after the comments had been posted. Approximately one month later Google passed the complaint to the blogger with a request to remove the comments, which he did three days later. The appellant issued a libel claim against Google. Google successfully appealed against the grant of permission to serve proceedings on it out of the jurisdiction. The judge found that three of the comments were arguably defamatory but that on common law principles Google was not a publisher of the words complained of, neither before nor after it was notified of the complaint. If, contrary to that view, Google was to be regarded as a publisher at common law, section 1 of the Defamation Act 1996 would provide it with a defence, in particular because it took reasonable care in passing the complaint on to the blogger after it had been notified of it. The judge also held that the period between notification of the complaint and removal of the comments was so short that any liability was so trivial that the proceedings were not justified.
The main issues in the appeal were (1) whether there is an arguable case that Google Inc was a publisher of the comments, (2) whether, if it was a publisher, it would have an unassailable defence under section 1 of the 1996 Act, (3) whether any potential liability was so trivial as not to justify the maintenance of the proceedings, and (4) whether Google Inc would have a defence, if otherwise necessary, under regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002.
The Court of Appeal dismissed the appeal, though did not support all the judge’s reasons in the court below.
Reasoning behind the judgment
The point of most significance is whether Google were a “publisher” of the comments said to be defamatory. Richards LJ took the view that the judge below had been “wrong to regard Google Inc’s role in respect of Blogger blogs as a purely passive one and to attach the significance he did to the absence of any positive steps by Google Inc in relation to continued publication of the comments in issue.” Google facilitated publication of the blogs, but its involvement was not such as to make it a primary publisher. It was doubtful that, prior to notification of the complaint, Google could be considered to be a secondary publisher, facilitating publication in a manner analogous to a distributor, because it could not be said to have known, or ought reasonably to have known, of the comments.
In relation to the position after notification of the complaint, however, additional considerations arose, and it is in relation to this period that Richards LJ took a different view from that of Eady J on the issue of publication, and he was led to do so primarily by the decision of the Court of Appeal in Byrne v Deane  1 KB 818. That case concerned an allegedly defamatory verse which someone had posted on the wall of a golf club and which was then allowed to remain there for some days. The Court held there that the proprietors of the club, by allowing the defamatory statement “to rest upon their wall and not to remove it”, with the knowledge that by not removing it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of the statement.
The provision of a platform for the blogs was equivalent to the provision of a notice board, which was why Byrne v Deane was considered in Godfrey v Demon Internet Ltd  QB 201, one of the first cases on internet service provider libel. And so it was in this case. Google provided tools to enable the blogger to design the layout of his part of the notice board, made the notice board available on terms of its own choice and could readily remove or block access to any notice that did not comply with those terms. In those circumstances, if Google allowed defamatory material to remain after it had been notified, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of the material and thereby to have become a publisher of the material.
On the merits, however, there was no reason to disagree with the judge’s conclusion that any damage to the appellant’s reputation during that period would have been trivial. It was highly improbable that any significant number of readers would have accessed the comments after Google was notified and prior to removal. As in Jameel (Yousef) v Dow Jones & Co Inc  QB 946, “the game would not be worth the candle”.
This judgment is effectively unappealable – the claimant lost because of the application of Jameel to the facts. So we have in effect a reasoned judgment, irreversible in a higher court, which takes an important step towards defamation liability for all internet publishers of any scale.
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