Tamiz v Google: a spot of blogger

Background

In August 2011, Mr. Tamiz commenced proceedings against Google, Inc (“Google”), complaining that comments made in a blog hosted on blogger.com contained comments which were defamatory of him. Having submitted a letter of claim to Google in early July 2011, the letter was forwarded by Google to the blogger on 11 August 2011 and, on 14 August 2011, the blogger voluntarily removed all the comments about which the complaint was made. Mr. Tamiz’s claim form was sent to the Court on about 10 August 2011 and was issued by the Court on 16 August 2011. Mr. Tamiz’s claim was for damages in respect of the publication of the allegedly defamatory comments during the period prior to their removal.

In March 2012, Mr. Tamiz was granted permission to serve the claim form on Google in California, that being the location of the headquarters of blogger.com and where the content was hosted. On Google’s subsequent application, however, Eady J held that the court should decline jurisdiction and that the order for service out of the jurisdiction should therefore be set aside. In reaching his decision, Eady J held that, although some of the defamatory comments made on Google’s blogger.com were capable of defaming Mr Tamiz:

a) Google was not a publisher under common law either before or after notification by Mr. Tamiz on the basis that it was a “purely passive” platform provider. Eady J drew an analogy with a wall which had been “festooned” with graffiti overnight, and held that, because Google was not required to (nor did it) take any positive step after notification to continue the accessibility of the material, it should not be held to be a publisher;

b) even if Google was found to be a publisher, it would have a defence under section 1 of the Defamation Act 1996 (the “Act”) because it took reasonable care in relation to the comments by passing the complaint to the blogger who had posted them or, failing that, a similar defence under regulation 19 of the E-Commerce (EC Directive) Regulations 2002; and

c) in any event, even if Google was liable, any liability would be so trivial so as not to justify the maintenance of the proceedings given the relatively short time-frame between Google being notified of the existence of the content and it taking action.

That ruling by Eady J was the subject of appeal to the Court of Appeal in 2012.

Findings of the Court of Appeal

Was Google a publisher under the common law?

Richards LJ stated that Google’s position in relation to Blogger.com was not best represented by Eady J’s analogy of a wall which had been covered in defamatory graffiti for which the owner, Google, could not justifiably be held responsible. A more apposite analogy was a “gigantic noticeboard” which was in Google’s control and where notices could be taken down if they were notified to Google.

In failing to remove the comments, Richards LJ held that Google was held to have made itself responsible for the continued presence of the comment, thereby becoming a publisher under common law following notification of the comment.

Defence under section 1 of the Act?

Richards LJ went on to consider whether, as a “publisher” of the material, Google was able to avail itself of a defence under section 1 of the Defamation Act 1996, which defence allows for publishers to escape liability where they took reasonable care in connection with the publication (section 1(1)(b)) and did not know, and had no reason to believe, that what they did or contributed to the defamatory publication (section 1(1)(c)).

Richards LJ agreed with Eady J’s findings that Google had taken “reasonable care” in relation to the publication of the comments despite five weeks having elapsed between original notification by Mr. Tamiz and the content eventually being taken down. This was because of factors which included the “vast” number of blogs that are generally hosted on blogger.com which “justified a longer response time”, the absence of any relevant “previous conduct” of Google which should justify liability on its part and the terms of use in place by Google which made clear that defamatory content was strictly prohibited.

However, in order to qualify for the section 1 defence, Google must also have had no knowledge or reason to believe that what it did caused or contributed to the publication of a defamatory statement (section 1(1)(c) of the Act). Following Davison v Habeeb and Others, Richards LJ thought it arguable that, at some point after notification, Google did know or have reason to believe that its continued hosting of the material in question caused or contributed to the publication of a defamatory statement. As such, Section 1 would therefore not provide an unassailable defence in this case and, therefore, Google could potentially face liability for the defamatory content.

“Real and substantial tort”

Notwithstanding Richards LJ’s finding that Google was a “publisher” of the defamatory statements, and that it would not necessarily be entitled to rely upon a defence under section 1 Defamation Act 1996, he agreed with Eady J’s finding that the damage caused to Mr. Tamiz during the period following notification will have been so “trivial” so as not to justify the continuation of legal proceedings. Richards LJ found that it would be “highly improbable” that any significant number of readers will have accessed the comments in question after notification and prior to them being removed, not least because of the nature of blogs and the fact that early comments are often not read following subsequent comments being posted. As such, Richards LJ agreed that the “game would not be worth the candle” and, accordingly, Mr. Tamiz’s appeal was dismissed.

Comment

This case appears to establish that hosts of “blogging” sites such as Google may indeed face liability for unlawful content on their websites, in circumstances where they are notified of the existence of such content but do not act expeditiously, or reasonably expeditiously, to remove it. While the position with regards to other online intermediaries and internet service providers (ISPs) will always vary from case to case depending on the particular facts, it is clear that liability will turn upon the extent to which the relevant ISP entity has knowledge of the words complained of and their illegality (or at least potential illegality) and/or upon the extent to which it has control over publication.

It is also interesting to note that one should consider factors such as the size of the online intermediary in question, the likely circulation and level of readership of the comments and the “previous conduct” of the parties as relevant factors in assessing the reasonableness of the time-frame in which an online intermediary should react to notification of unlawful content on its servers. Following the decision, however, and at least until the position is clarified in the much-anticipated Defamation Bill, any online intermediaries would be well-advised to deal carefully and expeditiously with any notifications they receive regarding unlawful content on their websites.