February 13, 2013
Google can be liable as publisher
Court of Appeal clarifies law for ISPs but dismisses claim
The Court of Appeal today handed down its long-awaited judgment in Tamiz v Google Inc.
It is the first case, following a sequence of High Court decisions such as Godfrey v Demon Internet, Bunt v Tilley and Metropolitan International Schools v Designtechnica, in which the Court of Appeal has addressed the question of the liability of ISPs in defamation. Although the appeal was dismissed on the ground that the claimant’s case on its facts was too ‘trivial’ to be allowed to proceed, the Court ruled that Google Inc as the operator of the blogging platform Blogger.com was arguably a publisher at common law once it had been put on notice of a complaint of libel. It also decided that Google Inc did not have an unassailable defence under s.1 of the Defamation Act 1996 (DA 1996), as Eady J had held. However the Court decided it was not necessary to address in its judgment the arguments the parties had canvassed on the correct interpretation of art 14 of the E-Commerce Directive and reg 19 of the domestic E-Commerce Regulations (E-CR).
Mr Tamiz (T) initiated libel proceedings against Google Inc and Google UK Ltd after Google Inc had failed promptly to remove defamatory comments concerning himself posted anonymously on a blog hosted on Blogger called ‘London Muslim’. (T subsequently settled his claim against Google UK Ltd, having been informed that it had no responsibility for Blogger.) He obtained permission from the Master to serve his claim on Google Inc (G) in California. G applied to the Court to set aside that permission and for a declaration had no jurisdiction to hear the claim or, if it did, that it should not exercise it. The application was heard by Eady J. T represented himself at the hearing.
Eady J acceded to G’s application and declined jurisdiction on three grounds: (1) that G was not a publisher at common law for the purposes of the law of defamation whether before or after notification of a complaint (essentially because its role in relation to Blogger was ‘passive’); and even if this was wrong, (2) it had unassailable defences to the claim under s.1 of the DA 1996 and under reg 19 of the E-CR and (3) the period of publication between actual notification of the complaint to G (8 July) and take down (14 August) was so short that any potential liability that arose was so trivial as not to justify the maintenance of the proceedings.
T then instructed solicitors and appealed. Permission having been granted by Laws LJ, T’s appeal was heard before the Court of Appeal (the Master of the Rolls, Richards LJ and Sullivan LJ) on 3-4 December 2012. In its judgment of today’s date, the Court dismissed T’s appeal on the ground that it was “highly improbable that any signficant number of readers will have accessed the comments [during the period between notification to G and take down]…and in those circumstances the judge was right to consider that ‘the game would not be worth the candle’” (para. 50). However, before reaching that conclusion, Richards LJ decided that so far as post-notification publication was concerned the claim could not be dismissed on the ground that G was not a publisher of the comments (para. 36), and that Eady J had not been right to hold that s.1 of the DA 1996 provided G with an unassailable defence (para. 46).
T was represented on the appeal by Godwin Busuttil of 5RB instructed by Iain Wilson of Brett Wilson LLP.