The anonymity of bloggers and their commenters can make life difficult for those who object to what they write. In the absence of named individuals, the frustrated libel claimant often alights on those whose services make their publication possible in search of a remedy.

The decision by Eady J in Tamiz v Google Inc [2012] EWHC 449 (QB), on an application to set aside an order for service out, assesses the liability of the internet business for publications on its popular Blogger platform, and is the second judgment in the past six months on this type of complaint against the company.

Facts

The Claimant, who appeared in person, was briefly in the news in early 2011 following allegations that his resignation as Conservative Party candidate for local elections in Thanet had come about after he had made inappropriate remarks online. A blog post appeared on the London Muslim blog (hosted on Blogger) headed “Tory Muslim candidate Payam Thamiz resigns after calling girls ‘sluts’”, and the comments sued on appeared beneath it. No proceedings were brought against the blogger or commenters, although they were brought in respect of an article on the subject in the Evening Standard.

While some of the comments were mere abuse, they did contain more serious allegations, including those of drug dealing, and theft from an employer. The Claimant used the ‘report abuse’ function on the website in April to complain about two of them, and, in June, sent a letter of claim to Google UK, who passed it on to Google Inc. They asked his permission to contact the author of the blog, and the Claimant subsequently complained about five further comments. The comments were eventually removed by the blogger himself in August. A claim was issued shortly afterwards, and the Claimant was granted permission to serve the claim form on Google Inc in California on a without notice application on September 22.

Judgment

Eady J considered three principal lines of argument advanced by the Second Defendant.

The first concerned a lack of evidence of a “real and substantial” tort within the jurisdiction. In spite of initially omitting to plead any instances of substantive publication, the Claimant did adduce witness statements from those who had seen the material as part of a subsequent attempt to do so.  In examining the individual comments, the Judge found that at least three of them were apt to cause damage to reputation, and would have survived a strike out application. Although there was a less serious context of “generally abusive banter”,  this did not mean that all the comments should be dismissed as such.

The second raised the more tricky question of whether Google Inc is a publisher according to common law principles. The Judge stated that there is yet to be a definitive decision establishing how web publishers fit into the traditional framework. He referred to Davison v Habeeb 2011 EWHC 3031 QB where HHJ Parkes QC found there was an arguable case that Google was a publisher and was liable post-notification. He suggested that the position “may well be fact sensitive”, pointing to the differences between the position in law of the ISPs in Godfrey v Demon Internet ([2001] EWHC QB 201), Bunt v Tilley (2006 EWHC 407 (QB)), and of Google Inc in Metropolitan International Schools Limited v Design Technica Corp. (2009 EWHC 1765 (QB)).

On the question of whether Google Inc could be liable after notification, and on its policy that it will not remove offending material as a matter of both principle and practicality, the Judge referred to the startling fact that the Blogger.com platform contains more than half a trillion words, with 250,000 new words added every minute. He held that accepting the responsibility to notify the offending bloggers did not necessarily change Google’s status:

 “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.”

The technical ability to take material down does not make it an “author or authoriser” of that material. The lack of any requirement to take a positive step in enabling continuing access to the material is crucial:

 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).

Even if it were so liable, the Judge accepted the Defendant’s submissions that the Defamation Act 1996 provided further defences, specifically on the basis that Google Inc is not a “commercial publisher”, meaning that is not the publisher of the material within the meaning of sections 1(2) and (3) of the Act, that it did take “reasonable care” in relation to the complaint, and that it did not know, and had no reason to believe that it had caused or contributed to a defamatory statement.

The third argument concerned the statutory “hosting” defence, found at Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, which succeeded in Davison. In short, this protects the provider of an “information society service” which consists of the storage of information, where that service is provided

 “for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”

On the evidence, Google Inc was the provider of the service and the “London Muslim” blogger its recipient. To make out the defence there must be no “actual knowledge of unlawful information” and this point was held to be crucial: practitioner texts, domestic and European authorities all indicate that, without knowledge of the extent of any defences available, or sufficiently precise and adequately substantiated information about the alleged illegality, a host cannot be fixed with actual knowledge. This point is reinforced by Regulation 22, which concerns the notice by means of which knowledge is imputed, and requires it to include “details of the unlawful nature of the activity or information in question”.

Even if the earlier conclusions on this point were incorrect and Google was a publisher at common law, Regulation 19 would exempt it from liability. The Master’s order for service out was set aside.

Comment

The decisions of Eady J in Bunt and Metropolitan International Schools have played a key part in shaping the law in this area. Here, the Judge considered the same type of publication, by means of Google Inc’s Blogger platform, which was very recently at issue in Davison (see my earlier Inforrm case comment here). This decision largely builds on the situation outlined in that case, particularly with regard to the availability of the ‘hosting’ defence provided by Regulation 19 of the Electronic Commerce Regulations to Blogger and similar services. It confirms the broad protection the Regulations provide, and the relevance of the ECJ’s recent thinking on the significance of notification in relation to them in L’Oréal SA and Others v eBay International AG and Others (C-324/09, 12th July 2011).

However, where HHJ Parkes QC in Davison thought that the issue of notification was relevant to the question of liability, in that it potentially makes blogger a publisher of the material, referring to the analogy of a giant notice board to explain Blogger’s situation, this decision holds otherwise. The real world comparison used by the Judge here is that of the owner of a wall which has been covered in defamatory graffiti – a failure to remove it does not necessarily make him a publisher. The studied neutrality of Google towards the content on Blogger and, crucially, the lack of positive action taken to continue making it accessible, even after notification have, according to the Judge, put it in the position of the ISPs in Bunt, its role being “purely passive”.

The door left open by Davison for claimants whose position is that the platform is itself a publisher has been definitively shut by this decision, and it is a welcome one for internet businesses. But the analogy between blogging platforms and ISPs seems inexact: ISPs enable the functioning of the internet as a whole and should be protected accordingly, but Blogger enables only easy self-publishing, from which its parent company profits. As HHJ Parkes QC asserted in Davison, Blogger has, and oversees, a content policy, so the extent to which it truly is “passive” seems debatable. This fundamental difference, and the acknowledgement that the position is “fact sensitive”, suggests that this is not the last word on online publishing services

Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.