In Tamiz v Google Inc  EWCA Civ 68 (14 February 2013), the Court of Appeal refused permission to serve proceedings against Google Inc, despite there being an arguable case, because the level of potential liability was not sufficient to justify maintaining international proceedings.
Blogger.com is a Google service which hosts free online blogs. The Claimant alleged that one blog hosted by blogger.com contained material defaming him. He notified Google and, following a letter of claim a few weeks later, the blogger voluntarily removed the material. The Claimant subsequently brought an action for libel against Google for the period between notification and removal.
Proceedings were commenced against Google UK and Google Inc (the latter being a US corporate). At an earlier hearing the High Court had refused permission to serve Google Inc outside the jurisdiction and held there was no triable claim against Google UK. The latter decision relating to Google UK was accepted; however, the Claimant appealed the refusal to allow service of Google Inc.
Factors to consider in whether allowing service against Google Inc
The Court of Appeal stated that, in order to allow service against Google Inc, the Court had to consider: (i) whether there was an arguable case that Google Inc published the material; (ii) whether it would have a defence under s.1 of the Defamation Act 1996 (i.e. had not been involved in authoring/editing the publication, took reasonable care in relation to the publication, and had no reason to believe it was contributing to the publication of a defamatory statement); (iii) whether liability was not so trivial as to make it unjust to maintain proceedings; and (iv) whether there would be a defence available under Regulation 19 of the E-Commerce Regulations 2002 (i.e. was Google merely a hosting service with no knowledge of defamatory material and/or which took action to remove it expeditiously upon having received notice of the material).
The defamatory comments
The original claim stemmed from defamatory comments made about the Claimant on the blog, following the publication of an article criticising him in the Evening Standard newspaper (a claim against the paper was settled separately). The claim relating to the blog comments involved a number of postings, the majority of which were dismissed by the High Court as non-defamatory ‘vulger abuse’; however, three of the comments (including an allegation that the Claimant was a drug dealer and a thief) were arguably defamatory.
The Claimant first notified Google via a ‘report abuse’ button on 28 or 29 April 2011. However, the article remained online and on 5 July 2011 Google UK received a letter of claim, which it then passed to Google Inc. Google Inc contacted the Claimant, who confirmed the postings were defamatory. On 11 August 2011 the letter of claim was forwarded to the blogger, who voluntarily removed the comments on 14 August 2011.
The claim against Google
The claim only covered the period after Google Inc’s receiving notification of the complaint. The Court of Appeal agreed with the High Court’s acceptance that it was virtually impossible for Google to exercise editorial control of content and that it was merely a facilitator of information. The High Court had stated it was difficult to see why this should change following publication, as Google’s neutrality remained constant, and used the following analogy:
"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 Court of Appeal differed with the High Court on the period after notification, instead following the decision of Byrne v Deane  1 KB 818, where the proprietors of a golf club were classed as publishers following the failure to remove a statement posted on the wall of the golf club, which itself had displayed a sign stating ‘no notice or placard shall be posted without consent’. There, the failure to remove material conveyed the message that the proprietors were taking part in the publication. The test provided was this:
“having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?"
Possible liability as a publisher
The Court of Appeal’s view was that the 5 week period between notification and removal was sufficiently long to allow for the possibility of an adverse inference against Google Inc. Further, there was no guarantee of a defence under s.1 of the Defamation Act.
The issue then became one of whether or not there was a sufficiently ‘real and substantial tort’ (i.e. was there sufficient potential liability in that limited period between notification and take-down) to justify maintaining proceedings. The Court of Appeal decided there had not been such a tort and refused permission to serve outside the jurisdiction, which was necessary to maintain proceedings. The material in question had fallen far down a chain of comments and it was unlikely many people had accessed it or much damage had occurred during the period following notification to Google. Because there was insufficient potential liability to continue the claim there was no need to consider the availability of a Regulation 19 defence.
Comment: The Court of Appeal’s judgement demonstrates that the liability of website hosting providers and facilitators is not only difficult to prove and will be subject to the hurdles of multiple possible defences but, in cases where the defendant lies outside the jurisdiction, the defamation will also have to constitute a ‘real and substantial tort’. In these situations, it will be necessary to show the defendant’s potential liability (which will largely equate to the harm caused by the defamatory material) is sufficient to justify maintaining an international claim.
The full transcript of in Tamiz v Google Inc  EWCA Civ 68 (14 February 2013) can be found here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html