Last week the UK Court of Appeal in Tamiz v Google Inc [2013] EWCA Civ 68 (14 February 2013) ruled that Google, as the host of the Blogger.com site, had potential liability for defamation by failing to take down or disable access to defamatory content once it receives notice that it is hosting such content.
The Court of Appeal reversed the decision of the UK High Court in Tamiz v Google Inc Google UK Ltd [2012] EWHC 449 (QB) (02 March 2012) which had dismissed a claim against Google for not taking down or removing access to allegedly defamatory statements posted on Blogger.com. Google was exonerated even though it had received notice of the claim and took no unilateral steps to take it down. The only action taken by Google was to inform the person who operated the blog that there was a complaint about the postings. (The blogger then voluntarily removed the postings.)
Google argued that it could not be liable as a publisher of the allegedly defamatory statements, or for having authorized the publication of the statements. It contended it was a mere provider of the blogging platform; had no way of ascertaining whether the statements were true or false; and from a technical perspective was not required to take any positive steps to continue to make the offending material accessible. Justice Eddy, at first instance, accepted these arguments stating the following:
Ms Evans next raised the argument that Google Inc should not be regarded, as a matter of English law, as a publisher of the words complained of…
The position may well be fact-sensitive. Liability may turn upon the extent to which the relevant ISP entity has knowledge of the words complained of, and of their illegality or potential illegality, and/or on the extent to which it has control over publication…
No allegation is made in this case of liability on the part of Google Inc in respect of any of the “comments” complained of prior to notification by Mr Tamiz of his objections. It is only necessary, therefore, to assess potential legal liability from the point of notification (whenever that occurred). It is relevant to have in mind, although it cannot be determinative as a matter of law, that Google Inc promulgates and attempts to follow a well known policy of its own; that is to say, it will not remove offending material because it is not in a position to investigate or come to a decision upon any legal challenge. As I understand it, this is partly a question of principle and partly a matter of sheer practicality. Google Inc regards itself as providing a platform for the free exchange of information and ideas and would not wish to be seen as a censor. In any event, the blogs on Blogger.com contain, I am told, more than half a trillion words and 250,000 new words are added every minute. In these circumstances, it is virtually impossible for the corporation to exercise editorial control over content…
Google Inc accepts the responsibility of notifying (albeit not always with great promptitude) the blogger(s) in question. It does not, however, accept that it should investigate every complaint received, whether by way of establishing the facts or obtaining advice on the relevant domestic law or laws that may be applicable. 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. It claims to remain as neutral in that process after notification as it was before. It takes no position on the appropriateness of publication one way or the other. It may be true that it has the technical capability of taking down (or, in a real sense, censoring) communications which have been launched by bloggers or commentators on its platform. Yet that is not by any means the same as saying that it has become an author or authoriser of publication. It is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.
It seems to me to be a significant factor in the evidence before me that Google Inc is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant’s objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one… I would rule that Google Inc is not liable at common law as a publisher…
The Court of Appeal noted that Google provides a platform for blogs, together with design tools and, if required, a URL. It also noted that Google provides a related service to enable the display of remunerative advertisements on blogs and can readily remove or block access to any blog that does not comply with its terms of service. According to the Court, by the provision of that service Google facilitates publication of the blogs. This involvement is not such, however, as to make it a primary publisher of them.
The Court ruled, however, that Google’s position changed after notification of the complaint. Relying on the authorities of the Court of Appeal in Byrne v Deane [1937] 1 KB 818 and Davison v Habeeb [2011] EWHC 3031 (QB), and the New Zealand cases, Baycorp (NZ) Limited [2008] NZHC 403, and A v Google New Zealand Ltd [2012] NZHC 2352, the Court held that Google could be liable if by failing to remove allegedly defamatory material an inference could be drawn that Google had associated itself with, or had made itself responsible for, the continued presence of that material on the blog and thereby became a publisher of the material. According to the Court:
In the present case, Eady J referred at [32]-[33] to Godfrey v Demon Internet Ltd and to Davison v Habeeb, observing that the position may well be fact sensitive: liability may turn upon the extent to which the relevant ISP has knowledge of the words complained of, and of their illegality or potential illegality, and/or on the extent to which it has control over publication. In relation to Blogger he said nothing about HHJ Parkes QC’s analogy with the provision of a gigantic notice board on which others post comments. Instead, he drew an analogy with ownership of a wall on which various people choose to inscribe graffiti, for which the owner is not responsible (see [16] above). I have to say that I find the notice board analogy far more apposite and useful than the graffiti analogy. The provision of a platform for the blogs is equivalent to the provision of a notice board; and Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the notice board and by providing a service that enables a blogger to display advertisements alongside the notices on his part of the notice board. Most importantly, it makes the notice board available to bloggers on terms of its own choice and it can readily remove or block access to any notice that does not comply with those terms.
Those features bring the case in my view within the scope of the reasoning in Byrne v Deane. Thus, if Google Inc allows defamatory material to remain on a Blogger blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material. Mr White QC submitted that the vast difference in scale between the Blogger set-up and the small club-room in Byrne v Deane makes such an inference unrealistic and that nobody would view a comment on a blog as something with which Google Inc had associated itself or for which it had made itself responsible by taking no action to remove it after notification of a complaint. Those are certainly matters for argument but they are not decisive in Google Inc’s favour at this stage of proceedings, where we are concerned only with whether the appellant has an arguable case against it as a publisher of the comments in issue.
I do not consider that such an inference could properly be drawn until Google Inc had had a reasonable time within which to act to remove the defamatory comments. It will be recalled that on the judge’s findings the letter of claim containing the complaint about Comment A was received on or about 5 July 2011 (and certainly by 8 July), the complaint about Comment B was introduced in the appellant’s response to Google Inc on 8 July, and the complaint about Comment D was introduced on 22 July. The letter of claim was forwarded to the blogger on 11 August and the material was all removed on 14 August. That means that in relation to Comments A and B, in particular, a period of over five weeks elapsed between notification and removal. In the context of the defence under section 1 of the 1996 Act, considered below, Eady J described Google Inc’s response as somewhat dilatory but not outside the bounds of a reasonable response. Whilst I accept the judge’s assessment in the context of the statutory defence, it is in my view open to argument that the time taken was sufficiently long to leave room for an inference adverse to Google Inc on Byrne v Deane principles.
The period during which Google Inc might fall to be treated on that basis as a publisher of the defamatory comments would be a very short one, but it means that the claim cannot in my view be dismissed on the ground that Google Inc was clearly not a publisher of the comments at all.
This is the second decision in the past few months that went the wrong way for Google in defamation suits. In Trkulja v Google Inc LLC & Anor (No 5) [2012] VSC 533 (12 November 2012), an Australian court recently found Google liable for defamation when its computers produced and put together search results that were considered to be defamatory. I summarized that decision here.
In Canada the liability of a hosting provider is likely to turn on whether the provider can be characterized as an innocent disseminator. In Crookes v Newton 2011 SCC 47, the Supreme Court of Canada stated that an Internet service provider can avoid becoming a publisher for defamation purposes if its role in the dissemination of information is that of an “innocent disseminator”. An “innocent disseminator” in the Internet context is an entity that acts in a content neutral manner, having no actual knowledge of an alleged libel, and not being aware of circumstances to put it on notice to suspect a libel, or being negligent in failing to find out about it, and whose role in the dissemination of the information is merely passive, instrumental, and automated. The Court described the attributes of an innocent disseminator after reviewing leading UK copyright and defamation cases as well as its own decision in the SOCAN Tariff 22 case.
