The Court of Appeal have recently handed down a decision (Payam Tamiz v Google Inc  EWCA Civ 68) which clarifies the previously unresolved issue over Google Inc’s liability in defamation under English law for material posted on Blogger.com. Arguably, they are liable.
The Evening Standard published an article claiming that Payam Tamiz had resigned as a Conservative Party candidate after it had been discovered that his Facebook page referred to women in a derogatory fashion. After settling his case against the Evening Standard, Mr Tamiz complained to Google over defamatory comments posted by anonymous bloggers on the London Muslim blog under an article about the incident posted April 2011. His Letter of Claim was received by Google Inc in July 2011 and was forwarded to the blogger by Google in August 2011 who voluntarily removed the comments. He then tried to sue Google (as the host) for the damage done to his reputation before the content was removed, but although the Court initially granted permission for him to serve Google in California, Google successfully applied to set this decision aside. Mr Tamiz appealed.
Overall, the Court of Appeal dismissed the application because Google’s potential liability was so trivial it was not worth continuing with the case and some comments were held to be no more than ‘mere vulgar abuse’. But on a more positive note, the Court held it was wrong to say that Google was not a publisher irrespective of notice. Google’s role in operating Blogger is not purely passive as they provide design tools, a URL, advertisements, service on terms of their choice and can remove or block access to any blog. Instead, Google is arguably a publisher and thus can be sued after notification. The provision of a blog is similar in analogy to the Golf Club notice board in the case of Byrne v Deane  1 KB 81. In that case, defamatory material was left up on a notice board post notification. The Court said that in such a case it could be inferred that the provider has participated in or has made itself responsible for its continued publication, unless action is taken within a reasonable time period. Here, the 5 weeks between notification and removal was unreasonable.
Although not providing a definitive answer, this decision offers some clarity on the law in a landscape where, despite all the modern forms of both digital communications content (footnote1) and different roles played by providers, general legal principles have been previously applied in a clumsy fashion. Here, due to Google’s role, it was arguably liable.
Yet, almost in complete contradiction, some types of content still appear to have different legal significance in comparison with others due to their context (despite the capacity to have a similar impact in terms of damaging reputations). Here, it seems that comments below an article can be difficult to sue over as they can be categorised as ‘mere vulgar abuse’ in the same way as postings on the thread of an internet bulletin board. This is an extension of this principle to a new form of content.
The Court also held that, by a blog’s very nature, comments (although still accessible) are followed by other comments in a chain and recede into history causing less damage and by the time Google had been notified (two and a half months after the comments were posted) it was unlikely anyone would have read them. However, the distinction between an article and the comments beneath it seems superficial as they can often be the most defamatory part of the same page. Further, this reasoning makes no distinction between comments below an article on one long page and postings made on bulletin boards which can run into many, many pages (receding into history faster). Here the ‘James Murdoch defence’ (‘I didn’t read it because I didn’t scroll down’) seems to have been deployed, but what if there are hundreds of defamatory comments? What if those comments start showing up in Google search results? What if comments or links to them are then tweeted or re-tweeted? Can damage online be aggregated? It may be too simplistic in view of the complex nature of online reputation to suggest otherwise.
Overall, if you want to take action over defamatory content posted anonymously online, it still remains essential to notify an operator or host immediately so they are aware during the period when the damage is likely to be caused. They must then act within a reasonable period of time, but what is a reasonable? 5 weeks was too long time to wait, but Mr Tamiz claimed to have also used the Report Abuse function to notify Google long before writing to them. However, whilst it is unclear here whether this function is effective in law for notification of a complaint rather than a Letter of Claim, it is clear from previous cases (but not here) that such a function would not be enough to provide Google with ‘actual knowledge’ of defamatory content. Without this, they could still have relied on the ‘Hosting Defence’ even without the protection they arguably lost in this case. Either way, a legal view should be obtained quickly.