Reference:  EWCA Civ 68
Court: Court of Appeal
Judge: Master of the Rolls, Richards LJ, Sullivan LJ
Date of judgment: 14 Feb 2013
Summary: Defamation - liability of ISPs - Publisher - Defamation Act 1996 - Google Inc
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Godwin Busuttil (Appellant)
Instructing Solicitors: Brett Wilson LLP for A, Reynolds Porter Chamberlain LLP for R
A brought a claim against Google Inc (R) as operator of the service Blogger.com, in relation to comments that appeared anonymously on the “London Muslim” blog which R failed to promptly remove after A notified R of the comments and their defamatory nature. A was granted permission to serve the Claim Form on R in California, but on R’s application it was held that the court should decline jurisdiction and the order for service out of jurisdiction set aside. A appealed.
(1) Whether there was an arguable case that R was a publisher of the comments;
(2) If so, whether R would have an unassailable defence under s 1 Defamation Act 1996;
(3) Whether any potential liability was so trivial as not to justify the maintenance of proceedings;
(4) Whether R would have an unassailable defence under Regulation 19 of the E-Commerce Regulations 2002.
(1) There was an arguable case that R was a publisher of the comments after notification by A. The most appropriate analogy was that of a giant notice board provided by R on which others post material (Davison v Habeeb  EWHC 3031 (QB)). R provides that notice board on its own terms and conditions and has the power to remove or block material which does not comply with those terms. R not only provides the platform but provides tools to help a blogger design the layout of his/her blog and provides a service for provision of advertisements of a blog.
(2) R would not have an unassailable defence under s 1 Defamation Act 1996 after notification. The same reasons that led the court to conclude that R could be a publisher, tend towards the conclusion that, once notified, R knew or had reason to believe that what it did caused or contributed to the continued publication of the comments. Thus R might not fulfil the condition under s 1(c).
(3) The number of people who viewed the comments between notification and eventual take-down, and therefore the damage to A’s reputation will have been trivial, thus “the game would not be worth the candle” (Jameel (Yousef) v Dow Jones  EWCA Civ 75)
(4) Given the conclusion above the court did not consider it necessary to decide whether R would have a defence under s19 E-Commerce Regulations 2002.
This is an important case clarifying the law on the position of providers of internet platforms such as Google Inc as potential publishers under the law of defamation. This is the first time the Court of Appeal has addressed the matter, following a series of High Court decisions (Godfrey v Demon Internet, Bunt v Tilley, Metropolitan International Schools v DesignTechnica). Although the appeal was unsuccessful, it is now clear that, once notified, such a provider can be a publisher and, if they do not act promptly in response to notification, may not have a defence under s 1 Defamation Act 1996.