In March this year, the High Court (Eady J) gave judgment in the case of Tamiz v Google,1 which provided further guidance on the circumstances in which internet service providers (ISPs) could be held liable for third party defamatory content. The judgment fell heavily on the side of protecting ISPs and encouraging freedom of expression. While this is seemingly good news for ISPs, some of Eady J's statements were non-binding obiter comments and therefore ISPs should still act with a degree of caution in dealing with alleged defamatory content.
FACTS
The claimant in this case (Mr Tamiz) was in the news in April 2011 because of allegations that he had resigned as the Conservative Party candidate in Thanet after making inappropriate remarks about women. In response to this story, a blogpost appeared on the London Muslim blog called "Tory Muslim candidate Payam Tamiz resigns after calling girls 'sluts'." Mr Tamiz claimed that eight comments underneath that blogpost were defamatory; these comments made various allegations against Mr Tamiz, including that he was dishonest, a drug dealer and that he had stolen from his employer.
The original blog and the offending comments were posted using Google Inc.'s Blogger.com platform, which is hosted in the USA. Mr Tamiz did not bring a claim against the original blogger or those who wrote the comments underneath because they were anonymous and so it was hard to ascertain who was responsible. He therefore focused his libel claim on Google.
Mr Tamiz had obtained an ex parte order to serve his claim out of the jurisdiction on Google, Inc. However Google applied to set aside that order on the grounds that: (1) it had not committed a real and substantial tort within the jurisdiction; (2) it was not a "publisher" of the comments at common law; (3) it had a defence under section 1 of the Defamation Act 1996 (the "innocent dissemination defence"); and (4) it had a defence under Regulation 19 of the E-Commerce Regulations2 (the "hosting defence").
The High Court's decision on each of these arguments is considered below. By way of summary, Eady J held that, although a real and substantial tort had been committed within the jurisdiction, Google was not a common law publisher and could avail itself of both defences.
1. Jurisdiction
A particular difficulty for claimants bringing proceedings relating to online defamatory content is to prove that a "real and substantial tort" has been committed in England and Wales.3 It is not enough that the comments were accessible on the Internet and that selected individuals accessed, read or downloaded the material. Claimants must go further and show that some credence has been given to the comments, which is likely to affect their reputation in the eyes of the reader(s).
The judge reviewed the eight comments that Mr Tamiz had complained about and considered that the more serious statements had caused the Conservative Central Office to ask for an investigation. Those comments constituted a real and substantial tort within the jurisdiction and consequently Google failed to convince the judge on this point.
2. Common Law Publisher
In order to succeed in his claim, Mr Tamiz had to prove that Google was a "common law publisher" for defamation purposes i.e. that it contributed towards publication of the statements.
Eady J said that none of the previous decisions on ISP liability had definitively established when an ISP would be a "common law publisher". In Godfrey v Demon4, the defendant ISP was held to be a publisher as it knew about the defamatory content for some time (approximately a fortnight) and failed to take action to remove it. Whereas in Bunt v Tilley,5 the defendant ISPs were not common law publishers because they had not been informed of the defamatory content and played no more than a merely passive role in its publication.
In the present case, Google had been notified of the defamatory nature of the blog comments quite some time before proceedings started. Mr Tamiz first alerted Google to the postings using the website's "Report Abuse" function on 28/29 April 2011 and a letter of claim followed on 29 June. On 19 July, Google sought permission to forward Mr Tamiz' complaint to the original blogger but said that it would not remove the post itself. Finally, on 11 August, Google forwarded the letter of claim to the blogger, who removed the article and comments voluntarily on 14 August.
Following Godfrey, one might have expected the Court to hold that Google was a common law publisher. However, Eady J said that, even if an ISP is notified of a complaint (as Google had been in this case) it did not immediately convert the ISP's status or role into that of a "common law publisher". In particular Eady J thought it was significant that, regardless of whether it had been notified or not, Google did not take any positive step, technically, to maintain access to the offending content.
Arguably, in making this judgment, Eady J was contradicting the ruling in Godfrey, but he said that the case was decided 18 months before Freedom of Expression was enshrined in Article 10 of the European Convention on Human Rights; therefore the Court should no longer restrain freedom of expression where it was unnecessary or disproportionate to do so.
On the basis of Eady J's findings, it would seem that few ISPs can be classed as "common law publishers" for the purposes of a defamation action because few take positive, technical steps to publish defamatory content.
As Google was not a common law publisher, the Court could have declined to opine on whether Google could avail itself of the two defences pleaded. Nevertheless Eady J went on to discuss these defences (in non-binding obiter statements) and, once again, interpreted them in a way that was most favourable to ISPs.
3. Section 1 Defamation Act – Innocent Dissemination Defence
Section 1(1) of the Defamation Act 1996 states that an individual will not be liable for defamation if: (a) he is not the author, editor or publisher of the statement; (b) he takes reasonable care in relation to its publication; and (c) he does not know and has no reason to believe that what he did caused or contributed to the publication of a defamatory statement.
It is worth noting that, whether or not Google was a "publisher" for the purposes of section 1(1) requires a different assessment to that carried out above in relation to common law publication. This time the Court must consider whether the defendant's business is "issuing material to the public."
Most ISPs rely on s1(3)(e) Defamation Act 1996, which states that a person shall not be considered the author, editor or publisher if they operate or provide access to a communications system by means of which the statement is transmitted, or made available, by a person over whom the ISP has no effective control. Indeed Eady J said this provision was likely to apply to Google and consequently it would not be a "publisher" for the purposes of the innocent dissemination defence.
In terms of whether Google took "reasonable care" in relation to the claimant's complaint, Eady J agreed that it was probably a reasonable response to pass the complaint on to the blogger in question (rather than removing the alleged defamatory content itself). The huge number of posts on the Blogger.com pages made it unrealistic to investigate the truth of each offending statement.
In relation to part (c) of the section 1(1) defence, Eady J said that Google did not know and had no reason to believe that it had done anything to cause or contribute to the publication of the comments (despite the fact that one might consider allegations of theft, drug dealing and hypocrisy to be quite clearly defamatory).
Traditionally, Google might have been in trouble for the amount of time it took them to respond to Mr Tamiz' complaint (3-4 weeks). However, in this case,
Eady J said that the period between notifying the original blogger and the offending material being removed was so short that Google's liability would be trivial.
Eady J therefore thought the innocent dissemination defence would have been available to Google had it been needed.
4. Regulation 19 of the E-Commerce Regulations – Hosting Defence
Eady J used similar reasoning to find that the hosting defence in Article 19 of the E-Commerce Regulations would also have been available to Google.6
The hosting defence is wider than the innocent dissemination defence because it exempts an ISP from all unlawful activity provided: (1) they do not have actual knowledge of the unlawful activity/information and are not aware of facts or circumstances from which it would have been apparent that the activity/ information was unlawful; and (2) upon obtaining such knowledge or awareness, the ISP acts expeditiously to remove or disable access.
Eady J said that the availability of this defence depended on whether Mr Tamiz had a reasonable prospect at trial of establishing that Google had actual knowledge of "unlawful information" or awareness of facts or circumstances from which "unlawful information" would have been apparent at the time proceedings were commenced.
Eady J focused on the word "unlawful" and said that whilst a certain allegation may be defamatory on its face, it may subsequently prove not to be unlawful if, for example, there is a defence available to the defendant. It therefore seems that in order to characterise something as "unlawful", the defendant ISP needs to be able to ascertain the strength and weaknesses of the available defences.
In this case, Mr Tamiz had not provided information in his letter before action as to the extent of the inaccuracy of the statements or the inadequacy of any defence. Therefore Google had no reason to believe the comments were defamatory and the hosting defence in Regulation 19 would have been available to them.
This begs the question of how far a claimant needs to go to prove the strength of its case before an ISP has enough information so that it can be classed as having 'actual' knowledge and thereby losing the hosting defence.
CONCLUSION
This judgment suggests that ISPs will not be considered common law publishers and therefore will not be liable for online defamatory posts unless they take a positive, technical step to maintain the publication. Although this is good news for ISPs, the judgment is contradictory to what was stated in a previous case on similar facts (Davison v Habeeb).7 In that case, which was decided in November last year, it was held that Google was arguably the common law publisher of defamatory blogs on Blogger.com. This case may be appealed in the Court of Appeal and, if it is, Eady J's findings on common law publication could come under scrutiny.
It was traditionally thought that ISPs had to take down content quickly following receipt of a complaint in order to avail themselves of the innocent dissemination and hosting defences. Yet the Tamiz judgment suggests that the burden on claimants to prove the strengths of their case (even at the notification stage) is greater and that ISPs have more time to deal with such allegations before they become liable for publishing online posts. One might wonder if claimants seeking the removal of other unlawful content (e.g. content that breaches IP rights) bear a similar burden of proof to that suggested by Eady J in this defamation case.
It is worth bearing in mind that Eady J's comments on the innocent dissemination defence and the hosting defence were non-binding and will not necessarily be followed in subsequent cases.
In light of this, it would be brave for ISPs to change their internal policy with regard to defamatory posts until the conflict in the previous case law is resolved.
Footnotes
1. Payam Tamiz v Google Inc and another [2012] EWHC 449 (QB), 2 March 2012
2. Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013)
3. Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75
4. Laurence Godfrey v Demon Internet Limited [1999] 4 All ER 342
5. Bunt v Tilley [2006] EWHC 407 (QB)
6. This is the English law provision that implements Article 14 E-Commerce Directive.
7. Andrea Davison v Habeeb and others [2011] EWHC 3031 (QB), 25 November 2011
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