The judgment given by Mr Justice Eady on 2 March in the High Court in the case Payim Tamiz v Google Inc [2012] EWHC 449 (QB) sheds considerable light on issues relating to liability for online defamation.
Background to the Claim
The claim related to eight comments which were said to be defamatory of the claimant and which were posted on a blog bearing the name ‘London Muslim’ at various times in April 2011. The claimant was granted permission to serve outside the jurisdiction and the Google reaction was to seek an order that the order for such service should be set aside and that the court should declare that there was no jurisdiction to try the claim.
The blog in question was created on the Blogger.com platform, a vehicle of Google Inc. An initial post about the claimant on 27 April 2011 said:
‘Payam Tamiz a Tory Muslim council candidate with a 5 o’clock shadow has resigned from the party after calling Thanet girls ‘sluts’.
Tamiz who on his Twitter page describes himself as an ‘ambitious British Muslim’ is bizarrely studying law so one would have though (sic) this Tory prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks.’
A number of comments were made by readers of this post. Some of those were derogatory and were the subject of the claim for libel. However, the claimant’s intial reaction was to call for the comments to be taken down. According to Mr Tamiz, he first notified his complaint on 28 or 29 April 2011 (ie as the postings were taking place) when he used the ‘Report Abuse’ function on the relevant web page. A letter of claim was sent on 29 June to Google UK Ltd (who were a defendant but had no responsibility for Blogger.com), which was received on 5 July. This complained of the original article as being defamatory and untrue, although it was not sued upon in the proceedings. Complaint was also made of one comment. This letter was passed by Google UK Ltd to Google Inc, which responded to Mr Tamiz by email on 8 July. Clarification was sought as to whether the comment in question was said to be untrue, since the letter had not apparently made that clear. Mr Tamiz responded promptly on 8 July to the effect that the first comment of which he complained was indeed ‘false and defamatory’ and he also complained about another comment at that stage.
Google’s Blogger Team sought Mr Tamiz’s permission to forward his complaint to the author of the blog page and he responded by giving the necessary permission on 22 July. In that email of 22 July, Mr Tamiz complained about a further five comments on the blog, which he regarded as defamatory and untrue (yet another was added later in the proceedings). After considerable delay, Google Inc forwarded the letter of claim to the blogger on 11 August and on 14 August the article and all the comments were removed by the blogger himself. Mr Tamiz was accordingly notified by Google Inc the following day. By that time, Mr Tamiz had issued proceedings.
Google’s Arguments
Google Inc argued that it has no control over any of the allegedly defamatory content and that it is not a publisher of the material but merely a neutral service provider. Moreover, it pointed out that it cannot reasonably be expected to investigate and determine the truth or falsity of allegations made by bloggers. Mr Justice Eady said (at [10]):
‘the position is, according to Google Inc, rather as though it owned a wall on which various people had chosen to inscribe graffiti. It does not regard itself as being more responsible for the content of these graffiti than would the owner of such a wall’.
Google also stated that the claimant’s particulars of claim did not assert that the words complained of had been accessed or downloaded by a substantial number of readers in the jurisdiction and thus the necessary pleading that a real and substantial tort has been committed within the jurisdiction was absent (see Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946). In any event, said Google Inc, the content of the words complained of did not reach the necessary ‘threshold of seriousness required to establish a cause of action in libel’.
The Ruling
It has to be borne in mind that the judgment did not follow a trial of the action but was a hearing to determine Google’s applications for an order setting aside permission for service out of the jurisdiction and for a declaration that there was no jurisdiction to try the claim.
Was there any evidence of a real and substantial tort within the jurisdiction?
Mr Justice Eady was prepare to dismiss five of the comments as being insufficient to found a claim for libel, amounting to no more than mere vulgar abuse (what Google’s counsel had characterised as ‘typical of the mindless rubbish to be found all over the Internet’). But two comments, which effectively branded the claimant as a criminal and which it was suggested had caused concern at the Conservative Party Central Office were considered to be of such gravity as to have the potential to found an action and a third, which included an allegation of hypocrisy, was not considered trivial enough to be dismissed at a preliminary stage. Eady J was not persuaded that the fact that the comments which survived were surrounded by ‘mindless rubbish’ was sufficient to entirely dilute their sting.
Was Google Inc a publisher according to common-law principles?
This is the most interesting aspect of the judgment (at [32]-[39]) and needs to be read in full:
‘It is probably fair to say that none of the decisions so far relating to the role of Internet service providers (ISPs) has definitively established, in general terms, exactly how such entities fit into the traditional framework of common law principles. In the recent decision of His Honour Judge Parkes QC in Davison Habeeb [2011] EWHC 3031 (QB), he recognised that ” … there is in my judgment an arguable case that [Google Inc] is the publisher of the material complained of, and that at least following notification it is liable for publication of that material”.
The position may well be fact-sensitive. Liability may turn upon the extent to which the relevant ISP entity has knowledge of the words complained of, and of their illegality or potential illegality, and/or on the extent to which it has control over publication. For example, in Godfrey v Demon Internet Ltd [2001] QB 201, it was held that an ISP which continued to store a defamatory posting on its news server, after having been asked to remove it by the claimant, was responsible for the publications which occurred when that posting was later accessed. (That case was decided some 18 months before the Human Rights Act came into effect.) On the other hand, in Bunt v Tilley [2007] 1 WLR 1243, a claim was struck out against three separate ISPs on the basis that ” … persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers”.
In a rather different context, where Google Inc had been sued in respect of its role as operator of the widely used search engine, it was held not to be responsible for publication of defamatory “snippets”, derived from automated searches by “web-crawling robots”, even though published on the “results” page in response to Google searches. Because the process is automated, and searches are framed by those making the enquiry without any human input from Google Inc, it was held that the mental element traditionally involved in responsibility for publication at common law was absent: see Metropolitan International Schools Ltd v Designtechnica Corpn [2011] 1 WLR 1743.
No allegation is made in this case of liability on the part of Google Inc in respect of any of the “comments” complained of prior to notification by Mr Tamiz of his objections. It is only necessary, therefore, to assess potential legal liability from the point of notification (whenever that occurred). It is relevant to have in mind, although it cannot be determinative as a matter of law, that Google Inc promulgates and attempts to follow a well known policy of its own; that is to say, it will not remove offending material because it is not in a position to investigate or come to a decision upon any legal challenge. As I understand it, this is partly a question of principle and partly a matter of sheer practicality. Google Inc regards itself as providing a platform for the free exchange of information and ideas and would not wish to be seen as a censor. In any event, the blogs on Blogger.com contain, I am told, more than half a trillion words and 250,000 new words are added every minute. In these circumstances, it is virtually impossible for the corporation to exercise editorial control over content. The position was summarised by [Google’s solicitor] in paragraph 9 of his witness statement:
“[Blogger.com] does not create, select, solicit, vet or approve that content, which is published and controlled by the blog owners. Blogger.com merely provides the tools for users to operate and maintain their sites.”
Ms Evans [counsel for Google] invites me to adopt a similar approach to that in the Designtechnica case and to conclude that it would be “unrealistic” to attribute responsibility for publication of material on any particular blog to Google Inc, whether before or after notification of a complaint.
Where the law is uncertain, in the face of rapidly developing technology, it is important that judges should strive to achieve consistency in their decisions and that proper regard should be paid, in doing so, to the values enshrined in the European Convention on Human Rights and Fundamental Freedoms. In particular, one should guard against imposing legal liability in restraint of Article 10 where it is not necessary or proportionate so to do. In this context, Ms Evans argues that it is unnecessary to impose liability on ISPs when a complainant, in order to have access to justice, may alternatively have resort to those who undoubtedly are responsible for publishing the offending words. This would include primarily the authors and possibly also the persons who have control of the blog in question. As I have indicated already, this is an approach which may be regarded as more theoretical than real because of problems of anonymity, but it is certainly not an argument that can be simply ignored. In Bunt v Tilley, cited above, the claims against AOL UK Ltd, Tiscali UK Ltd and British Telecommunications Plc were all struck out. Against that background, I concluded the judgment with these words:
“The Claimant is not deprived of access to justice. His remedies lie against the First to Third Defendants (if he can establish the necessary ingredients in respect of each). They may not be persons of substance, such as to make it worthwhile pursuing them. Even if that is right, it is clearly not a sufficient reason for bringing in the present applicants …”
The important question, in the present context, would appear to be, not whether Mr Tamiz can identify the authors or bloggers in question, still less whether they are worth powder and shot, but rather whether he is in a position to establish against Google Inc the necessary attributes of a publisher in accordance with common law principles.
Google Inc accepts the responsibility of notifying (albeit not always with great promptitude) the blogger(s) in question. It does not, however, accept that it should investigate every complaint received, whether by way of establishing the facts or obtaining advice on the relevant domestic law or laws that may be applicable. The fact that an entity in Google Inc’s position may have been notified of a complaint does not immediately convert its status or role into that of a publisher. It is not easy to see that its role, if confined to that of a provider or facilitator beforehand, should be automatically expanded thereafter into that of a person who authorises or acquiesces in publication. It claims to remain as neutral in that process after notification as it was before. It takes no position on the appropriateness of publication one way or the other. It may be true that it has the technical capability of taking down (or, in a real sense, censoring) communications which have been launched by bloggers or commentators on its platform. Yet that is not by any means the same as saying that it has become an author or authoriser of publication. It is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.
It seems to me to be a significant factor in the evidence before me that Google Inc is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant’s objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one. The situation would thus be closely analogous to that described in Bunt v Tilley and thus, in striving to achieve consistency in the court’s decision-making, I would rule that Google Inc is not liable at common law as a publisher. It would accordingly have no need to rely upon a defence (statutory or otherwise).’
This element of the ruling was sufficient to put paid to the claim but Mr Justice Eady went on to consider two more issues.
The effect of the Defamation Act 1996, s 1 and the Electronic Commerce (EC Directive) Regulations 2002, reg 19
The judge took the view that Google would be able to take advantage of the protection offered to publishers by the Defamation Act 1996, s 1. One reason for this was that the gap between the notification to Google Inc and the taking down of the post and comments was so short as ‘not to be worth the candle’. Perhaps more controversially, he also accepted the argument that Google was not a commercial publisher and that its response to Mr Tamiz’s complaint, while dilatory, was not outside the bounds of a reasonable response.
As regards reg 19, the position was that Google Inc was protected by it even if all the other conclusions of the judge were ‘incorrect, or unduly precipitate’. The protection could only fall away in such a case where a precise and adequately substantiated notification was given to the information society service provider and none of the notifications from the claimant had been sufficient, bearing in mind no doubt that the claimant had shifted his focus from the post to the comments and had added to his list of complaints from time to time:
‘It may be thought by Mr Tamiz to be implicit in his complaints that he was denying, outright, any allegation of theft or drug dealing, but it cannot be right that any provider is required, in the light of the strict terms of Regulation 19, to take all such protestations at face value. Clearly more is required for a provider to acquire a sufficient state of knowledge to be deprived of the statutory protection.’
Comment
One word of caution needs to be added here. The claimant was not represented and, while it is clear that the judge was anxious to make allowances for that (and it seems that the defendants tried hard not to take advantage), it was a one-way argument and the complaint itself lacked focus. That is unfortunate for lawyers as they would no doubt like to have seen some of these issues more authoritatively resolved. Moreover, Mr Justice Eady’s words at [33] when considering the question of whether Google was a publisher bear repeating:
‘The position may well be fact-sensitive. Liability may turn upon the extent to which the relevant ISP entity has knowledge of the words complained of, and of their illegality or potential illegality, and/or on the extent to which it has control over publication.’
