UK: Blog And Maybe Not Be Damned

Last Updated: 3 April 2012
Article by Nick Armstrong

New High Court decision gives bloggers and ISPs greater protection

In a Judgment given on 2 March 2012, Eady J made a ruling which is encouraging for those hosting user-generated content (UGC) websites such as blogs.

Such website operators and ISPs benefit from the protection of section 1 of the Defamation Act 1986 which provides a defence to an entity which is "not the author, editor or publisher" of the words complained of, where reasonable care was taken and there was no knowledge or reason to believe that it had caused or contributed to the publication of a defamatory statement. (There is an allied provision in the European Electronic Commerce Regulations 2002, regulation 19).

The accepted approach has always been that where the complainant gives actual notice to the ISP of the defamatory words, the protection will be lost if it does not address the problem. Often, this meant immediate take-down of the offending material.

In the case of Tamiz v Google Inc and Google UK Limited [2012] EWHC 449(QB), Mr Justice Eady refined the approach, giving ISPs etc rather more leeway.

The case concerned comments posted on a blog about London Muslims hosted by which is operated by Google. The Claimant sued both Google Inc and Google UK Limited on the grounds that the comments were defamatory of him.

Prior to starting the action, he had complained to Google about the comments. After a period of time, Google had contacted the blogger who had removed the comments voluntarily. The complainant had been granted permission by the Court to serve the English libel proceedings on Google Inc in the US.

The issue in front of Eady J was whether that permission should be withdrawn because the English Court had no jurisdiction to try the complaint; and alternatively if there was jurisdiction, whether the English Court should decline to exercise it.

It was established that Google UK Limited did not control or operate and they were not involved in the hearing because they were not an appropriate party to the action.

This in itself is instructive when attempting to deal with untoward comment on – it seems clear now that there is no point in attempting to contact Google in this country and that complaint must be made to Google in the US.

The Judge's ruling was that Google Inc was not a publisher and could rely on the Defamation Act Section 1 defence and the protection of regulation 19.

The Judge said that the English Court did not have jurisdiction on this instance and he thus set aside the earlier court order allowing for the libel action to be served overseas.

The Judge's analysis was interesting. He said that Google Inc despite owning and controlling took only a passive role, providing a platform for the free exchange of information and ideas. It exercised no editorial control nor did it need to take any actual steps for material to be available.

More importantly still, he found that the mere fact that Google Inc had been notified of a complaint did not automatically mean that it changed status, from being a passive facilitator to an active publisher.

The fact that it was able to remove publications on did not mean that it was the author or authoriser of such publications.

Furthermore, even if Google Inc had been a "publisher" for the purposes of the general law, it did not fall within the definition of "commercial publisher" because it simply provided a vehicle for others to communicate – it wasn't issuing material to the public in the course of its business.

The judge considered that Google Inc had behaved properly in contacting the author of the blog once notified of the complaint. Even though it had delayed, this did not make its conduct unreasonable under section 1.

There was such a short period between the receipt of notification and the removal of the offending material by its author that any potential libel claim would be verging on the trivial. Thus any claim would come under the rule in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB946 where the Claimant found his action struck out because it was so trivial as not to be "worth the wick, let alone the candle".

In an additional gloss on E-Commerce regulation 19, the Judge found that mere receipt of a complaint from a would-be libel claimant did not mean that Google Inc had been fixed with "actual knowledge of unlawful activity" which is what is specified in regulation 19 for an ISP to be liable. In order to know whether something was unlawful, there is a need to know something about the strength and weaknesses of possible defences. Mere notification of the complaint by itself does not achieve this.

The other aspect of the case, turning on its specific facts, was the Judge's analysis of the actual statements complained of as being libellous. This demonstrates how these cases are decided in practice.

He analysed each specific allegation complained of, and said that 5 of them were in fact not capable of being anything more than mere "vulgar abuse". The reasonable reader would not have attached credence to them and therefore they could not provide the "real and substantial" basis for a libel action. That left only three comments on the basis of which the claimant could theoretically have sued.

Whilst the case does not make new law as such, it gives very useful guidance as to the way in which complaints about blogs will be viewed if brought before the courts. It is a valuable reminder about the strength of the protection available under section 1 of the Defamation Act and E-Commerce regulation 19.

The Judge said this about the position of an entity such as Google Inc which is providing an online blog or other UGC service: such an entity is like a person who

"owned a wall on which various people had chosen to inscribe graffiti...

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".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nick Armstrong
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