Payam Tamiz v Google Inc was an appeal from the English High Court regarding a claim of defamation against Google by Payam Tamiz, a British Conservative Party candidate. The defamatory comments were published anonymously on a blog hosted on Google's blogging platform 'Blogger'. The key issue for the court was whether Google was a "publisher" of the comments.
The High Court had found that the comments were defamatory but Google was not a "publisher" of those comments and, therefore, it was not liable for them. The Court of Appeal, however, distinguished between the periods before and after Google was notified of the defamatory material. They agreed with the High Court that Google could not be considered a publisher before it was notified of the defamatory comments. However, they disagreed with the High Court's conclusion that Google could not be considered a publisher for the period after notification.
The Court of Appeal considered the situation to be analogous to the publishing of notices on a notice board, where the owner of the notice board has control over its contents, as Google can readily remove or block access to any blog that does not comply with its terms. As a result, the continued presence of the allegedly defamatory comments on the blog after Google was notified of them could be inferred as Google having associated itself with, or to have made itself responsible for, the continued presence of the defamatory comments on the blog and therefore it was a publisher of the defamatory material.
Notwithstanding this conclusion, as the period between notification of the complaint and the removal of the offending comments was very short, the appeal failed on the basis that any damage to the appellant's reputation during that period was trivial.
As discussed recently in our analysis of A v Google New Zealand Limited, the New Zealand position regarding the liability of an ISP or hosting service for hosting defamatory comments by third parties is uncertain. It is likely that the New Zealand Courts will look to overseas decisions such as this for guidance. As a result, ISPs and hosting services in New Zealand should be aware that they may face potential liability as a 'publisher' of defamatory material if they fail to remove from their services material over which they have a large degree of control once they have been notified of that material.