Tamiz v Google Inc [2012] EWHC 449 (QB)

Mr Tamiz sued Google over allegedly defamatory comments posted on a Blogger-hosted blog. The High Court held Google, as platform provider, was not a publisher at common law and, even if it were, statutory defences applied. Permission to serve Google Inc out of the jurisdiction was set aside.

Facts

Mr Payam Tamiz brought a libel action against Google Inc and Google UK Ltd concerning eight allegedly defamatory comments (labelled A–H) posted between 28 and 30 April 2011 on a Blogger-hosted blog called “London Muslim”.

The original blog post, headed “Tory Muslim candidate Payam Tamiz resigns after calling girls ‘sluts'”, discussed allegations about the claimant’s resignation as a Conservative Party candidate. Mr Tamiz did not sue on the original post or on some 37 other comments in the thread, but only on eight specific comments.

Google Inc, based in the USA, operates Blogger.com, described as a “platform” allowing internet users worldwide to create independent blogs free of charge, hosting them on Blogger URLs if they lack their own. Google UK Ltd provides only sales support and marketing in the UK and does not operate or control Blogger.com.

The complained-of comments included, in particular, allegations that Mr Tamiz was a “known drug dealer in thanet”, had been taken to court for theft from his employer, and suggestions, framed as questions, that he might sell drugs and that his family were criminals. Other comments were crude, personal insults about his character, personal life and family.

Mr Tamiz initially used the “Report Abuse” function on the page around 28–29 April 2011, but what happened to that report was unclear. On 29 June 2011 he sent a letter of claim to Google UK Ltd complaining of the original article and what became Comment A. The letter was forwarded to Google Inc, which emailed him on 8 July seeking clarification and pointing out that Blogger was not operated by Google UK Ltd.

On 8 July he confirmed that Comment A was “false and defamatory” and added a complaint about Comment B. On 19 July Google’s “Blogger Team” sought his permission to forward his complaint to the blog author and indicated Google Inc itself would not remove the post. On 22 July he consented and complained also of Comments C–G as defamatory. Google Inc forwarded the complaint to the blogger on 11 August. On 14 August the blogger voluntarily removed the article and all comments; Google notified Mr Tamiz on 15 August.

The claim form was issued on 16 August 2011. Master Eyre granted permission on 22 September 2011 to serve Google Inc in California. The particulars of claim, served on 2 November, added Comment H. Google UK Ltd served a defence explaining that it did not control Blogger and had been improperly joined.

Issues

The main issues were:

1. Jurisdiction and real and substantial tort

Whether the claim satisfied Practice Direction 6B paragraphs 3.1(3) or 3.1(9) for service out of the jurisdiction, and in particular whether there was evidence of a “real and substantial” publication and tort within England and Wales, as required by authorities such as Jameel (Yousef) v Dow Jones & Co Inc and Al Amoudi v Brisard.

2. Threshold of seriousness in libel

Whether the content of the comments met the necessary threshold of seriousness to constitute a viable libel claim, or were merely “vulgar abuse” unlikely to affect reputation.

3. Whether Google Inc was a publisher at common law

Whether Google Inc, as the provider of the Blogger platform, was a “publisher” of the comments at common law, particularly after notification of complaint.

4. Statutory defences

Assuming Google Inc could be a publisher, whether it could rely on:

• section 1 of the Defamation Act 1996 (defence for non-author/editor/publisher who took reasonable care and did not know that what they did caused or contributed to publication), and/or
• Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (hosting defence based on lack of actual knowledge of unlawful information or prompt removal upon gaining such knowledge).

Judgment

Real and substantial tort and seriousness

The court examined each of the eight comments individually. Mr Justice Eady accepted that a claimant must show more than bare access; there must be some basis to believe that publication had a real reputational impact. He noted that some evidence had been filed late from individuals who had seen the material, including a person at Conservative Central Office who had sought clarification.

He accepted Ms Evans’ submission that many internet comments are recognised as “mindless rubbish” or “mere vulgar abuse” carrying little weight, as discussed in Smith v ADVFN Plc and Clift v Clarke. Nonetheless, he considered that some comments could not be dismissed so easily.

Comment A, alleging that Mr Tamiz was a “known drug dealer” and had been taken to court for theft from his employer, coupled with reference to his mother’s supposed convictions, was a clear and serious allegation of criminality apt to damage reputation. Comment D, by way of questions, repeated the drug dealing allegation. These could not simply be dismissed at this stage.

Comment B, alleging that he took girls home to “houseparties” and slept with them, might not nowadays be seen as seriously defamatory in itself, but when coupled with an accusation of hypocrisy it could not be said to be incapable of founding a cause of action.

By contrast, Comments C, E, F, G and H were characterised as “mere vulgar abuse” to which no sensible person would attach weight. They did not represent a “real and substantial tort” requiring vindication of reputation.

The judge indicated that, if dealing with a striking-out application, he would leave Comments A, B and D in the claim but would strike out the other five.

Google Inc as publisher at common law

The court considered earlier authorities on internet intermediaries, including Godfrey v Demon Internet Ltd, Bunt v Tilley, and Metropolitan International Schools Ltd v Designtechnica Corpn. It accepted that liability may depend on knowledge and control and that entities which are “a passive medium for communication” may not be publishers.

Google Inc’s evidence was that Blogger.com:

“does not create, select, solicit, vet or approve that content, which is published and controlled by the blog owners. Blogger.com merely provides the tools for users to operate and maintain their sites.”

Google Inc did not remove content upon complaint; instead it notified the blogger and left the decision to the blogger. It provided a platform but took no editorial role and was not required to take positive technical steps to continue the accessibility of material.

Mr Justice Eady held that, on this evidence, Google Inc’s role as platform provider was “purely passive” and closely analogous to the position in Bunt v Tilley. The fact that it could technically remove content or that it was notified of complaints did not of itself convert it into a publisher authorising or acquiescing in publication. He likened it to the owner of a wall on which others had daubed graffiti: the ability to remove the graffiti did not necessarily render the owner a publisher.

He concluded that Google Inc should not be regarded as a publisher, or as authorising publication, under common law principles. On that basis, Google Inc would have no need of any statutory defence.

Section 1 of the Defamation Act 1996

The judge went on, in case he was wrong about common-law publication, to consider section 1 of the Defamation Act 1996. He noted that the definition of “publisher” in section 1(2) is a “commercial publisher”, meaning a person whose business is issuing material to the public containing the statement in the course of that business. He accepted the submission that, while Google Inc provided the Blogger platform, it did not itself “issue material” to the public in the relevant sense. That was done by the blog owner and commentators.

He considered that Google Inc could be characterised within section 1(3)(e) as:

“the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.”

He discussed Godfrey v Demon Internet Ltd, where Morland J held that Demon was not an author/editor/publisher under section 1(2)–(3), but lost the defence under section 1(1)(b)–(c) after failing to remove a defamatory posting on notice.

As to section 1(1)(b), he accepted Ms Evans’ argument that Google Inc took “reasonable care” in passing the complaint to the blogger, given the vast scale of Blogger content and the impracticality of investigating truth or legal defences for each complaint. Although there was delay, he did not regard its response as falling outside reasonable bounds.

Regarding section 1(1)(c), he observed that after notification Google Inc would have had reason to believe that Comments A, B and D were “prima facie” defamatory on their face, but that is different from knowing that its actions caused or contributed to their publication. In any event, the window between notification and removal on 14 August 2011 was short, so any potential liability would be trivial, such that “the game would not be worth the candle” in Jameel terms.

He concluded that, if necessary, section 1 would afford Google Inc a defence.

Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002

The court next considered Regulation 19, which limits liability of a provider of an “information society service” that consists of the storage of information provided by a recipient of the service. Blogger.com was an information society service; the “London Muslim” blogger was a “recipient” using it to make information accessible.

Under Regulation 19, a host is not liable if it lacks actual knowledge of unlawful activity or information, and is not aware of facts or circumstances making illegality apparent, or, upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access.

The key question was the meaning of “unlawful”. The judge referred to Bunt v Tilley, commentary by Dr Matthew Collins, and cases such as Kaschke v Gray and Davison v Habeeb, recognising that a defamatory allegation is not automatically “unlawful” in the absence of consideration of potential defences.

He also examined the Grand Chamber decision in L’Oréal SA v eBay International AG, especially paragraphs 120–122, where it was held that a provider may lose the exemption if it has facts or circumstances from which a diligent operator should have identified illegality, including where notified, but that notifications that are “insufficiently precise or inadequately substantiated” may not be enough.

He noted Regulation 22, which directs courts to consider whether a notice includes details of the unlawful nature of the activity or information. In this case, Mr Tamiz’s complaints did not give such details or explain inaccuracies or why defences did not apply. The judge accepted that a provider is not required to accept a complainant’s assertions at face value and that more is required before the host can be said to have actual knowledge of illegality.

He therefore held that, even if Google Inc were a publisher at common law, it would fall within the Regulation 19 defence and be exempt from liability.

Implications

The court ultimately declined jurisdiction over the claim against Google Inc. Mr Justice Eady set aside Master Eyre’s order granting permission for service out of the jurisdiction, holding that the claim had no real prospect of success against Google Inc.

The judgment provides significant guidance on the liability of internet platform providers for user-generated content. It emphasises:

• the need for a claimant to demonstrate a real and substantial publication and non-trivial reputational harm in internet libel claims;
• that providers of neutral platforms, who neither create nor control content and merely provide tools, are unlikely to be treated as publishers at common law;
• that even if treated as publishers, such providers may have strong defences under section 1 of the Defamation Act 1996 and Regulation 19 of the 2002 Regulations, particularly where complaints are general and unsubstantiated and removal follows within a reasonable timeframe;
• the influence of Article 10 ECHR and the need for proportionality when considering imposing liability on intermediaries, especially where direct authors may, in theory, be sued.

This decision, taken alongside Bunt v Tilley, Metropolitan International Schools v Designtechnica, and Davison v Habeeb, reinforces a cautious approach to extending defamation liability to internet intermediaries and underscores the protective scope of the E-Commerce Directive regime.

Verdict: The High Court held that Google Inc, as provider of the Blogger platform, was not a publisher at common law and in any event would be protected by statutory defences. The court declined jurisdiction and set aside the Master’s order granting permission to serve the claim form on Google Inc out of the jurisdiction.

Source: Tamiz v Google Inc [2012] EWHC 449 (QB)