Full case report
Davison v Habeeb & Ors
Reference  EWHC 3031 (QB)
Judge HHJ Richard Parkes QC
Date of Judgment 25 Nov 2011
Defamation – Service out of jurisdiction – Internet blogs – Liability of blog hosting provider for publication at common law – Immunity under Reg. 19 Electronic Commerce (EC Directive) Regulations 2002
C sued for libel in respect of articles published on a ‘Blogspot’ blog maintained by the Second Defendant, a journalist, which linked her to a massive criminal conspiracy involving theft and fraud. The Fifth Defendant, Google Inc. (‘Google’), a US corporation, provided the blog platform (through its website www.blogger.com) and hosted the blog on its servers. Google applied to set aside the Master’s Order granting permission to serve the proceedings on it out of the jurisdiction, contending that the Court had no jurisdiction to try the claim or should not exercise any jurisdiction that it might have.
(1) Whether C had shown that a real and substantial tort had been committed within the jurisdiction;
(2) Whether Google was arguably liable for publication of the articles at common law and notwithstanding the statutory defence of innocent dissemination under s.1 of the Defamation Act 1996. In the course of argument C limited her claim to the period after she had notified Google of her complaint and asked it to remove the articles; and
(3) Whether it was immune from liability by virtue of Art. 14 of the E-Commerce Directive and Reg. 19 of the Electronic Commerce (EC Directive) Regulations 2002.
Setting aside the Order granting permission to serve Google out of the jurisdiction:
(1) C had failed to show that a real and substantial tort had been committed. The articles had been published to five individuals in the jurisdiction, none of whom knew her or were known to her. Applying the same test as for abuse of process under Jameel v Dow Jones Inc.  QB 946, the proceedings would achieve no worthwhile vindication for C. An important factor was that Google would not be in a position to challenge the claim by pleading justification, thus there would be no public determination of the merits as against that defendant.
(2) It was arguable that Google was liable for publication of the articles at common law, on the basis that it had not merely acted as a passive conduit like an ISP but could be seen as a publisher hosting material on its servers and responding to requests for downloads like the defendant in Godfrey v Demon Internet Ltd  QB 201; or at least as providing an almost infinitely huge electronic notice board which was within its control, so that it became liable once it refused to take them down. Moreover, it appeared to assume a degree of responsibility for what was published, given its ability to remove offending matter in accordance with its own ‘contents policy’. Bunt v Tilley  1 WLR 1243 and Metropolitan International Schools v Designtechnica Corp  1 WLR 1743 considered.
(3) However, there was no realistic prospect of C establishing that the notification of her complaint fixed Google with “actual knowledge of unlawful activity or information” or made it “aware of facts or circumstances from which it would have been apparent to [it] that the activity or information was unlawful” within the meaning of Reg.19 of the 2002 Regulations. On the present facts, there was no good arguable case in damages or for any other pecuniary remedy in respect of the publication of the words complained of whether before or after notification of her complaint. Bunt v Tilley, Kaschke v Gray  1 WLR 452 and L’Oréal SA v eBay International AG (Grand Chamber, 12th July 2011) considered.
Another case pointing up the potential divergence between the s.1 Defamation Act 1996 defence and the E-Commerce Regulations 2002. The Judge regarded it as material to the Reg. 19 immunity that Google was faced with conflicting claims between the Claimant and the Second Defendant as to the truth of the allegations, upon which it was in no position to adjudicate. But Internet publishers who merely host defamatory material on their servers are nearly always going to be able to say that they are in no position to adjudicate on the merits of a libel complaint. As the Judge acknowledged, decisions such as this (albeit obiter on the point) set the bar for liability under the E-Commerce Regulations materially higher than under s.1 of the Defamation Act 1996. But it is surely open to doubt whether Parliament intended to effect such a significant change in the law. The test proposed by Google – that notification “in circumstances where it is not clear whether a defence is available” is not sufficient to fix the ISP with liability – places the burden of proof on falsity on the complainant and logically entails that perhaps little short of a prior court verdict in favour of the complainant would be sufficient to “substantiate” the claim. The test laid down in Bunt v Tilley – that the publisher “would need to know something of the strength or weakness of available defences” – is hardly more satisfactory. The contrast drawn by the Judge with intellectual property claims is also open to question: different sorts of potential defences will be available to trademark infringement claims, and it is far from clear that the ECJ in the L’Oréal case was positing that the notional “diligent economic operator” would have to be satisfied that no defence was available before it could be liable.
Reynolds Porter Chamberlain for the Fifth Defendant
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