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SCL Annual Lecture 2016:

Tamiz v Google: Court of Appeal Judgment on Defamation Claim

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The Court of Appeal judgment has given judgment in respect of the claim by Mr Tamiz that he was defamed on a blog hosted by Google and that Google was liable for damages. In supporting the ruling of Eady J and rejecting Tamiz’s appeal, the Court of Appeal nevertheless opens a window for claims that Google might well have liability in some cases.

In Payam Tamiz v Google Inc [2013] EWCA Civ 68, the Court of Appeal has given judgment on a libel claim arising from allegedly defamatory comments on a blog. The important issue in the case was the extent of the liability of Google for defamation; it was responsible for Blogger, the platform on which the blog in question was hosted.

Tamiz essentially complained that the blog hosted on Blogger bearing the name 'London Muslim' contained eight specific comments, posted between 28 and 30 April 2011, that were defamatory of him. There was a dispute as to when he first notified of this but it was agreed that his letter of claim was received by Google in early July 2011, that on 11 August 2011, after further e-mail exchanges, the letter was forwarded to the blogger and that on 14 August 2011 the blogger voluntarily removed all the comments about which complaint is made. Tamiz sought damages in respect of the publication of the allegedly defamatory comments during the period prior to their removal.

In proceedings prior to the Court of Appeal hearing, Tamiz was granted permission to serve the claim form on Google Inc in California. On Google Inc'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. That ruling by Eady J, whose judgment at [2012] EWHC 449 (QB) can be accessed here, was the subject of the appeal.

Giving the lead judgment, Richards LJ summarised the ruling by Eady J:

'Eady J found that three of the comments were arguably defamatory but that on common law principles Google Inc was not a publisher of the words complained of, whether before it was notified of the complaint or after such notification. If, contrary to that view, Google Inc was to be regarded as a publisher at common law, section 1 of the Defamation Act 1996 ("the 1996 Act") 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. At this point of his judgment Eady J also indicated his acceptance of a submission that the period between notification and removal of the offending blog was so short as to give rise to potential liability on the part of Google Inc only for a very limited period, such that the court should regard its potential liability as so trivial as not to justify the maintenance of the proceedings, in accordance with the principles in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. Nevertheless he went on to consider an alternative defence under regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 ("the 2002 Regulations"), which he held would provide Google Inc with a defence if it were otherwise needed.'

 

It is worth noting that Tamiz was not represented before Eady J and the arguments landing Google with liability as a publisher had not previously been made in detail. Richards LJ considered that Eady J was wrong to regard Google'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. He stated (at [24]-[25])

As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them, but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.

  1. By the provision of that service Google Inc plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge of, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article. Nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed. Such a corporation may be liable as a primary publisher by reason of the involvement of its employees or agents in the publication. But there is no relationship of employment or agency between Google Inc and the bloggers or those posting comments on the blogs: such people are plainly independent of Google Inc and do not act in any sense on its behalf or in its name.

Richards LJ also expressed his doubts about the claim that Google might be a secondary publisher in the period prior to notification of the complaint and 'even if it were to be so regarded, it would have an unassailable defence during that period under section 1 of the 1996 Act'.

However, after notification of the complaint, the position changed in the view of Richards LJ. He referred to Byrne v Deane [1937] 1 KB 818, where an allegedly defamatory verse posted on the wall of a golf club and was allowed to remain there for some days. That case suggested the following test 'having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?' It was referred to in Godfrey v Demon Internet Ltd [2001] QB 201 and Davison v Habeeb and Others [2011] EWHC 3031 (QB).

That finding turned attention the defence available to Google in s 1 of the Defamation Act 1996. Richard LJ accepted Eady's 'generous' view that Google's response to the complaint from Tamiz was reasonable. However, he went on to look closely at s 1(1)(c):

  1. The relevant question in relation to subsection (1)(c) is whether it can be said that in the period after notification of the complaint Google Inc did not know, and had no reason to believe, that what it did caused or contributed to the publication of a defamatory statement. The judge's reasoning on this was very brief. He said at [49] that once the complaint in respect of a relevant comment was notified, Google Inc would have had reason to believe that the comment was defamatory, but that this was "far from saying … that Google Inc would have known, or had reason to believe, that it had done anything to cause or contribute to the publication of any of these statements". But the very considerations that lead me to conclude that Google Inc arguably became a publisher of the defamatory comments on Byrne v Deane principles also tend towards the conclusion that following notification it knew or had reason to believe that what it did caused or contributed to the continued publication of the comments. The judge in Davison v Habeeb and Others, at [46], thought it arguable in that case that at some point after notification Google Inc knew or had reason to believe that its continued hosting of the material in question caused or contributed to the publication of a defamatory statement. In my view the same can be said in the present case.
  1. Mr White QC submitted that Eady J appeared to have had in mind what was said in Milne v Express Newspapers [2005] 1 WLR 772 about the similar language in section 4(3) of the 1996 Act, to the effect that an offer to make amends under section 2 is a defence unless the person by whom the offer was made "knew or had reason to believe" that the statement complained of (a) referred to the aggrieved party or was likely to be understood as referring to him, and (b) was false and defamatory of that party. The court held in that case that a person knew or had reason to believe that a statement was false if he either knew that it was false or was reckless as to whether it was false, in the sense of not considering or caring whether it was true or not. Eady J made reference to that decision when finding in Bunt v Tilley, at [61], that the condition in subsection (1)(c) was satisfied in relation to one of the ISPs because the email sent to it by the complainant "did not effectively put [it] on notice, and its staff were given no reason to believe that they were causing or contributing to the publication of the postings complained of". That finding turned, however, on the particular terms of the email in question, and it is difficult to read into the judge's reasoning in the present case any implied reference either to what he said on this point in Bunt v Tilley or to the decision or reasoning in Milne v Express Newspapers. In any event this line of reasoning does not appear to me to provide a satisfactory answer to the concern I have expressed about the judge's view of subsection (1)(c) in the present case.
  1. In the light of that concern about subsection (1)(c) I am not satisfied that, if Google Inc were found to be a publisher of the defamatory comments on Byrne v Deane principles, section 1 of the 1996 Act would provide it with an unassailable defence.

Having opened a window for the claimant on this, arguably the most interesting legal issue, the Court of Appeal then very firmly shut the door. It found that Eady J was certainly right in his view that, in any event, any liability of Google for the interim period between notification of the complaint and the removal of the comments was so trivial as not to justify the maintenance of the proceedings. But Google may well feel very nervous about its procedures in such cases and will not be entirely happy with this 'win'.

 

Published: 14/02/2013

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