Tamiz v Google Inc: Google win (but lose)

Slightly different from the normal VIP focus on IP but I have just been reading 5RB’s news item on the Appeal in Tamiz v Google Inc (the full judgment can be perused, at your leisure, here) which whilst a defamation case does appeal to my techy nature.

In essence Tamiz (‘T’) was allegedly defamed on Google Inc’s Blogger blogging website. T filed a take down request but this was not promptly actioned and accordingly T initiated libel proceedings against both Google Inc and its UK side Google UK Ltd. The claim against Google UK Ltd was settled on the basis that it had no involvement with Blogger, T then applied to the Court for permission to serve his claim on Google Inc in sunny California.

Google applied to set aside that permission on the basis that the Court had no jurisdiction to hear the claim, or, if it did, then such jurisdiction should not be exercised because Google had an “unassailable defence” to the claim under both s1 of the Defamation Act 1996 (i.e. it was not the author, editor or publisher of the statement) and reg 19 of the E-Commerce Regulations (i.e. Google, as a service provider, is not liable for damages etc where, in absence of knowledge of unlawful activity, it stored such defamatory information on its service).

Eady J (of whom VIP has fond memories due to a hilarious episode as trainee in which large amounts of correspondence boiled down to whether or not Eady heard a particular application, we said he did, they said he didn’t, in the end….he did) granted Google’s application finding that Google was not a publisher, that it did have an “unassailable defence” under both s1 of the Defamation Act 1996 and reg 19 of the E-Commerce Regulations, and that in any event the period of publication of the statement in question was so short that any liability arising from that publication would be so trivial as not to justify the proceedings.

T subsequently appealed Eady J’s decision. The Court of Appeal dismissed the appeal on the grounds that:

the earliest point at which Google Inc could have become liable in respect of the comments would be some time after notification of the complaint in respect of them. But it is highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog. It follows, as the judge clearly had in mind, that any damage to the appellant’s reputation arising out of continued publication of the comments during that period will have been trivial; and in those circumstances the judge was right to consider that “the game would not be worth the candle”. I do not accept Mr Busuttil’s submission that various other features of the claim, including the fact that the appellant’s name is relatively uncommon and distinctive in this jurisdiction, undermined the judge’s conclusion.

Importantly however before reaching that conclusion Richard LJ ruled that (quoting from 5RB’s news item):

so far as post-notification publication was concerned the claim could not be dismissed on the ground that G was not a publisher of the comments (para. 36), and that Eady J had not been right to hold that s.1 of the DA 1996 provided G with an unassailable defence (para. 46).

This therefore leaves open the possibility of internet platforms such as Google (or more pertinently Blogger) being liable for defamatory postings on its platforms. Such a platform provider need now, upon notification of defamatory material, promptly remove that material or otherwise risk becoming a ‘publisher’  of such statements and losing the s1 defence.

It is however a shame that the Court of Appeal did not address the further arguments regarding Art 14 of the E-Commerce Directive and/or Reg 19 of the E-Commerce Regulations. By doing so it leaves open considerable doubt as to the interpretation of this decision and we must now wait for the next similar case before knowing any further.

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