Reference:  EWHC 449
Court: High Court (Queen's Bench Division)
Date of Judgment: 2 March 2012
The anonymity of many bloggers can often mean that frustrated libel claimants have little choice other than to pursue those whose services make their publications possible. This was the case for Conservative Council candidate Payman Tamiz who sought to sue Google over alleged false and defamatory postings on a London Muslim blog hosted by its Blogger.com website.
Blogger.com is a platform provided by Google for bloggers all around the globe, to write what they want for free. Given the anonymity enjoyed by a number of bloggers, it may have been something of an inevitability that Google was ultimately going to find itself having to answer the important question: is it liable for the defamatory publications of those who use its servie? The High Court answered this question on 2 March 2012, when Mr Justice Eady held that Google cannot be regarded as the publisher of material posted on its Blogger.com website. In doing so he set aside a High Court Master’s decision to allow Mr Tamiz to serve defamation proceedings on Google Inc outside the jurisdiction (Google Inc operates from California and is registered in Delaware).
This story began in April 2011 when defamatory comments were posted about Mr Tamiz on a blog entitled “London Muslim”. These comments included allegations that Mr Tamiz was a drug dealer, a violent racist, from a family of criminals and had stolen from his employer. Mr Tamiz complained to Google about the postings, which did not take the postings down but drew the complaint to the blogger’s attention, who subsequently voluntarily removed the offending material. Master Peter Eyre granted permission to serve the claim form out of the jurisdiction, however Google applied to set aside this decision and to hold that there was no jurisdiction to try the claim or, if there was, that it should not be exercised.
Google successfully argued that it was not publisher of the material in question and was simply a neutral service provider, and had no control over the content of blogs on Blogger.com. It had no way of knowing whether material posted was true or not, and said it could not reasonably be expected to determine the truth or falsity of comments and allegations made by bloggers. Indeed, with over a trillion words on Blogger.com and with some 250,000 new words added every minute it would be entirely impractical for Google to be able to monitor the contents of all the blogs.
In addition, Google’s counsel successfully argued that Mr Tamiz’s claim did not ascertain whether a “real and substantial tort” had been committed under English law as Google was not a publisher for the purposes of the English law of defamation, and even if it was, the publisher was protected by Regulation 19 of the Electronic Commerce (EC Directive Regulations 2002). Indeed, Mr Justice Eady agreed and confirmed that Google was not liable at common law as a publisher, that section 1 of the Defamation Act 1996 would give Google a defence, if there were any need for it to rely on it and Google would be exempted from liability anyway in accordance with Regulation 19 of the EC Directive.
In regards to the matter of whether Google could be liable after notification, and on its policy that it will not remove offending material as a matter of practicality and principle, the Judge held that accepting the responsibility to notify the offending bloggers did not necessarily change Google’s position: “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.” Eady went on to highlight that Google is a "purely passive wall" with no responsibility for internet "graffiti" no matter how offensive or libelous.