12 March 2013 #Dispute Resolution
Blogging is a popular way for individuals to express their views and opinions freely to a wide audience on the internet. Internet service providers are generally not themselves regarded as the “publisher” of statements posted by their users, thereby avoiding any liability to pay compensation for any defamatory statements. However, the recent Court of Appeal decision in Tamiz -v- Google Inc  EWCA Civ 68 casts doubt on this position.
The case arose after Mr Tamiz complained to Google that a number of comments which appeared on ‘Blogger’ were defamatory of him. Blogger is a service operated by Google, which allows internet users in any part of the world to create their own web logs. Mr Tamiz’s complaint was received by Google approximately two months after the comments first appeared. Google forwarded the complaint to the blogger approximately one month later, and at Google’s request the blogger voluntarily removed the comments a few days afterwards.
Mr Tamiz subsequently brought a libel claim against Google in respect of the period the comments were online. Having initially given Mr Tamiz permission to serve the claim on Google in the United States, the English Court reversed its decision following an application by the company. Mr Tamiz appealed against that ruling.
The Court of Appeal had to consider the following issues: (1) whether there was an arguable case that Google was a publisher of the comments (2) if so, whether Google had a complete defence to the claim under the Defamation Act 1996 (3) whether any liability was so trivial as to not justify the claim, and (4) whether Google had any defence under E-Commerce Regulations.
On the first issue, the Court of Appeal decided the Judge was wrong to consider Google’s role as “purely passive”, and to place such a heavy emphasis on the absence of any positive steps taken by the company in relation to the continued publication. It held that the provision of a platform for blogs was analogous to the provision of a notice board. It followed that if Google allowed defamatory material to remain on a blog after it had been notified of the comments, it “might be inferred to have associated itself with, or made itself responsible for,” their continued presence. On the facts of the case, the time taken between notification of the complaint and removal of the comments was sufficiently long for it to be arguable that Google was a “publisher”.
The Court of Appeal also disagreed with the Judge in relation to the second issue. It concluded that following notification of the complaint, Google “knew or had reason to believe that what it did caused or contributed to the continued publication of the comments”. Accordingly, Google did not meet all of the criteria set out in the Defamation Act to have an unassailable defence to Mr Tamiz’s claim, which amongst other matters require a defendant not to know or have any reason to believe that what they did caused or contributed to the publication of a defamatory statement.
However, with regard to the third issue, the Court held that the earliest time Google could be liable in respect of the comments was when they received Mr Tamiz’s complaint. The Court considered it was “highly improbable that any significant number of readers would have accessed the comments after that time and prior to their removal”. Consequently, the Court was of the view that any damage to Mr Tamiz’s reputation would have been trivial, and the Judge was right to consider that the claim was not worth pursuing. Having reached that decision, the Court decided that it was unnecessary to consider the fourth issue, and dismissed Mr Tamiz’s appeal.
Although the appeal by Mr Tamiz was dismissed, the case serves as a warning to internet service providers (or any business that allows comments to be left on their website) that they need to act quickly when they receive a complaint about alleged defamatory material, particularly if the material is likely to be widely accessed on the internet. Failing that, they risk becoming a “publisher” of the material, potentially making them liable to pay compensation for any defamatory comments.