A blog offers unprecedented scope for self-publication. But can the providers of blog platforms, whose business model is to make the process as easy as possible, be held liable for their contents in English law? This question was addressed in the case of Davison v Habeeb ( EWHC 3031 (QB)) handed down on 25 November 2011 by HHJ Parkes QC (sitting as a judge of the High Court). The decision was made on an application by Google Inc. to set aside an earlier order in a defamation action in which it had been named as a party. This was due to its ownership and control of popular blog publishing tool Blogger, which had been used to publish material about the claimant, Ms Andrea Davison.
The claimant, who now runs a small business, asserted during her submissions that she used to work in the intelligence services and claimed to have given evidence to the Scott inquiry. She was the subject of articles in online newspaper The Palestine Telegraph (‘TPT’) and on a blog and, acting as a litigant in person, named six defendants in her claim for defamation.
The first and fourth defendants were TPT’s editor (the eponymous Habeeb) and publisher; they settled with the Claimant in June 2011, publishing an apology and ‘retraction’ and agreeing to pay damages and costs.
The second defendant, Peter Eyre, was the author of the articles, published in TPT as part of a series called ‘Pandora’s Box’, and contributed to by the third defendant, Gordon Bowden. The second and third defendants plan ultimately to defend the action and plead justification. The articles alleged that the Claimant was caught up in “ill specified fraudulent activities” as part of broader allegations of a wide ranging conspiracy involving various public figures. The second defendant republished his work for TPT on his personal blog ‘Peter Eyre’s Space’, a website produced and maintained on Blogger, continuing to do so after the fourth defendant’s retraction and apology.
The claimant complained to the fifth defendant, Google Inc (her complaint being forwarded via the sixth, Google UK), in its capacity as the owner of Blogger, that she had been libelled by articles published in the second defendant’s blog. She subsequently wrote again to the fifth defendant and used its report abuse feature, which enables users to make a report on grounds including ‘defamation/libel/slander’. It contacted the second defendant, who stood by the allegations, and further email communication between the claimant and the fifth defendant failed to lead to the material’s removal. Its position is that it operates in accordance with the laws of the USA and that, since it is not a publisher of Blogger under US law, it will only take down libellous material which is the subject of a court decision.
The Claimant named Blogger in her claim as the publisher of ‘Peter Eyre’s Space’, and as owning and controlling both the parent site and the specific blog in question, and obtained an order on January 20 2011 giving her permission to serve Google Inc out of the jurisdiction. The subsequent application was to set aside the first order on the basis that the court did not have, or should not exercise, jurisdiction to try a claim against the fifth defendant.
There were three substantive grounds for the application:
The first was that the claimant failed to disclose a real and substantial tort within the jurisdiction. The fifth defendant relied on Jameel v Dow Jones and Co Inc ( QB 946) for this point, since the same test used there for whether there was a real and substantial tort applied to the attempt to set aside permission for service. Although the judge held that, in the circumstances, the presence of members of Peter Eyre’s Space’ in the blogger network did lead to an inference of internet publication, their existence was not enough to show that there was a real and substantial tort, and proceedings would accordingly be an abuse of process. For this reason the order was set aside.
The second ground was that there was no arguable case that the fifth defendant was the publisher of any of the articles or emails complained of. Having alleged in her Amended Particulars of Claim that the fifth defendant was a publisher of the words complained of at all material times, the Claimant then contended in argument that it only became the publisher after notification of her concerns. The Judge considered both options.
The Judge carried out a comprehensive survey of the law relating to publication in general and publication by internet businesses in particular, focusing in particular on three key decisions in this area. The first, Godfrey v Demon Internet ( EWHC QB 201) and the second, Bunt v Tilley ( EWHC 407 (QB)) involved the liability of ISPs, the third Metropolitan International Schools Limited v Design Technica Corp. ( EWHC 1765 (QB)), the liability of Google for results generated by its search engine. In both Bunt and Metropolitan International Schools a mental element was held to be necessary for a person to be fixed with responsibility at common law. This need for “knowing involvement in the process of publication of the relevant words” was seized on by the fifth defendant for the assertion that it was not liable at common law for Eyre’s publication on his blog.
The Judge considered how new concepts such as the blog platform fit into the pre-existing system of defamation law, saying that
“it can be difficult to draw effective analogies between long established modes of publication like the newspaper and the television, and radically novel platforms like the enormous burgeoning Babel which the fifth defendant hosts through Blogger.com.”
While the ISPs in Bunt were simply conduits or facilitators for the messages at issue, Blogger is something different:
“It might be seen as analogous to a gigantic notice board which is in the fifth defendant’s control, in the sense that the fifth defendant provides the notice board for users to post their notices on, and it can take the notices down (like the club secretary in Byrne v Deane) if they are pointed out to it. However, pending notification it cannot possibly have the slightest familiarity with the notices posted, because the notice board contains such a vast and constantly growing volume of material.”
On this basis, Blogger should not be seen as a publisher at least until it has been notified that it is carrying defamatory material, a point at which it could be taken to have consented to publication. The Judge stated that liability depends on the mental element, notification being “of cardinal importance”.
There is some assumption of responsibility for content on the part of Blogger, or its content policy would be “a sham”, the Judge said. Unlike a search engine, the website host does have the ability to remove the offending words (an ability already demonstrated by Blogger in this case, where it had voluntarily removed some material, pending the outcome of proceedings). In Metropolitan International Schools Eady J specifically held that a website host is in a different position to a search engine in this regard because it can remove objectionable material and so be liable by acquiescence. This liability is not automatic on notification, the Judge here holding that the website host does have “time to respond”, though it cannot postpone removal indefinitely.
The Judge had sympathy with the fifth defendant’s submissions on the practicability of removing all disputed content, and on potential infringements of Article 10 rights to freedom of expression in doing so. Nevertheless he held that, having found that it was a publisher, it would, following notification, be unable to establish that it was ignorant of the existence of the defamatory material on Blogger, or to rely on the defence at s1, Defamation Act 1996. Even if not a publisher within s1 (1) (a), it would also, like the defendant in Godfrey, have to satisfy s 1 (1) (b) and (c), which require the defendant to show reasonable care, and no knowledge or belief of causing or contributing to publication.
Accordingly there was an arguable case that, in the period after having received notification, and before taking down the offending articles, the fifth defendant knew it was a publisher and did not take reasonable care. Moreover, even if it was only a facilitator, it was at least arguable that after notification it became liable on the Byrne principle of acquiescence. The order was not set aside on that ground.
The third ground for the application was that there was no good arguable case against the fifth defendant because it had no actual knowledge of unlawful activity, and was not aware of facts or circumstances from which such activity could have been apparent, for the purposes of Article 14 of the E-Commerce Directive and Regulation 19 of the Electronic Commerce Regulations 2000.
Directive 2000/31/EC of the European Parliament and Council, implemented in the United Kingdom by the Electronic Commerce (EC Directive) Regulations 2002, requires member states to take steps to ensure the free movement of information society services between member states. The Directive defines an information society service as one
“normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”
In its relationship with the second defendant (a ‘recipient’), the fifth defendant came within this definition, subject to the question of whether Blogger is a service provided for remuneration. In an analysis of practitioner texts, evidence about a user of Blogger’s potential sources of revenue, and Eady J’s conclusions in Bunt and Metropolitan International Schools, the Judge concluded that it is, and therefore does meet the Directive’s definition.
This allowed the fifth defendant to rely on the defence offered by Reg 19 of the 2002 Regulations (‘hosting’), which was intended to implement Art 14 of the Directive and provides for an immunity from damages, inter alia, where the service provider
“does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful”
The question of whether it had “actual knowledge of unlawful activity or information” was the one addressed by the Judge. He referred to Eady J’s view in Bunt, approved by Stadlen J in Kaschke v Gray ( EWHC 690 (QB)), that to characterise information as ‘unlawful’, a person would need to know about the strength or weakness of the available defences.
The Article 14 wording from which Regulation 19 derives was very recently considered by the ECJ in L’Oréal SA and Others v eBay International AG and Others (Grand Chamber, 12th July 2011) in a reference from the Chancery Division. The Court examined, in relation to a defence under the Article to trademark infringement, the extent to which notification of illegal activity or information makes an online business aware of it, and referred to the fact that such notifications may turn out to be “insufficiently precise or inadequately substantiated”.
The fifth defendant submitted that this idea was consistent with the views of Eady J and Stadlen J on the availability of defences, meaning that a service provider had no actual knowledge where it was merely notified of a defamatory allegation. Taking into account the conflicting claims regarding the allegations from the claimant and the second defendant received by the fifth defendant, the Judge concluded that the claimant had no realistic prospect of establishing that notification of her complaint fixed the fifth defendant with the required actual knowledge, or awareness of facts and circumstances, with regard to the lawfulness of the material.
Firstly, the decision offers a detailed analysis of the jurisprudence on ISPs and search results, and publication in general, and extends it to blog platforms. The case for an ISP, or the results generated by Google’s search functions, being passive conduits for the information they contain is a relatively straightforward one; these are mechanisms which underlie how the internet works, and do not rely on human input. Blogger, by contrast, enables any web user to turn publisher, a mechanism that has given rise to what the Judge called an “enormous burgeoning Babel”, and one that has a human element in its maintenance and administration.
The references to the classic case of Byrne v Deane  1KB 818, in which liability was found for leaving a notice containing defamatory material on a golf club notice board, show how a legal framework developed in a very different cultural and technological context may still be made to apply, and is a corrective to internet-centric exceptionalism. If Blogger is a giant notice board, and one which does have pre-existing policies towards the kind of content users may post, then notification, which had taken place in this case, is relevant to the question of liability. Platform providers and administrators should note that, according to this decision, they don’t become liable as soon as they are notified, but that this does not mean they can defer dealing with offending material indefinitely. Notification takes the platform outside the scope of the defence of innocent dissemination, or of s1 (1) of the Defamation Act 1996.
Secondly, and more reassuringly for platform providers and others, the free movement of goods and services principles enshrined in EU law apply to them, as they will normally meet the definition of an ‘information society service’. This means they can use the Article 14/Regulation 19 ‘hosting’ defence, which is available where they don’t know the controversial material is ‘unlawful’. Given the complexity of defamation law, and in particular of the defences available in a defamation claim, it will be rare that notification fixes the platform with the knowledge that takes it outside the scope of this defence. As the commentary quoted by Stadlen J in Kaschke points out, this is a broader defence than that available under the Defamation Act, being dependent on knowledge that the statement is ‘unlawful’, as opposed to merely defamatory.
The decision goes beyond the conclusions of Bunt and Kaschke in its application of principles from EU law which reinforce the High Court decisions. The reference to the possibility of notification being “insufficiently precise or inadequately substantiated” in L’Oréal SA and Others offers further comfort to those who merely receive complaints of a defamatory allegation, where there isn’t the required precision as to possible defences.
There is, however, the possibility outlined by the judge of a complaint being precise and well substantiated, and of the author of the original statement failing to defend it. Perhaps a complaint made on the basis of expert and detailed legal advice – the kind that would set alarm bells ringing at internet businesses in any case – would meet these criteria and mean that a web host did not come under the defence. Seen in these terms, internet services like Blogger do present a special case thanks to the breadth of Regulation 19, but not one which, from their point of view, is free from risk.
Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.