In a decision with broad implications for American companies, the England and Wales Court of Appeal found that Google could be liable for defamatory comments on a user-generated blog hosted by the company’s Blogger platform.

At issue were reader comments about a story posted on Blogger.com, a Google-operated platform where users can create their own blogs.  The blog ran a story that Payam Tamiz had withdrawn as a candidate for local office because his Facebook page referred to women as “sluts.”  Commenters added further allegations, ranging from Tamiz’s hypocritical attitude towards women to claims that he was a drug dealer and stole from his employers.

Tamiz repeatedly complained to Google, which finally forwarded a letter to the blogger, who removed the article and comments.  Tamiz also filed a defamation suit against Google.  A lower court judge dismissed the suit and Tamiz appealed.

After analyzing the 1996 Defamation Act, the Court analogized the blogs on Blogger.com to a notice board maintained by Google and held that the company’s role was not “purely passive.”

“Google goes further than [operating a notice board] 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,” wrote Lord Justice Richards.  “Most importantly, it makes the notice 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.”

Once the company had been notified of Tamiz’s complaint, “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,” the Court of Appeal said.

The Court limited the application of its holding to the period that Google “had a reasonable time within which to act to remove the defamatory comments,” but noted that five weeks elapsed between the company’s notification and removal.  “The period during which Google might fail 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 was clearly not a publisher of the comments at all,” the Court said.

However, Google escaped liability in the case because the Court reasoned any potential liability was insufficient to justify continuing the case.

“By the very nature of a blog, [the defamatory comments] will have been followed by numerous other comments in the chain, and whilst still accessible, will have receded into history.  As I have indicated, the earliest point at which Google could have become liable in respect of the comments would be some time after notification of the complaint in respect of them.  But it is highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog.  It follows…that any damage to [Tamiz’s] reputation arising out of continued publication of the comments during that period will have been trivial,” the Court concluded, affirming dismissal of the suit.

To read the decision, click here.

Why it matters:  Companies with an Internet presence should be aware that differences remain between the protections provided in the United States under the Communications Decency Act and the broader coverage of the United Kingdom’s Defamation Act.  While Section 230 of the CDA offers Web site operators immunity from user-generated content, the UK decision makes it clear that under its laws, notice can establish liability for Web site operators that host third party content.