In the recent case of Payam Tamiz v Google Inc the High Court appears to have broadened the defenses available to ISPs sued for hosting unlawful third party content.
Mr. Tamiz, an English Conservative party candidate, sued Google for defamation in respect of certain comments made about him and hosted on Blogger.com. Blogger.com is a free Google service, which allows an Internet user to create a blog, which is then hosted on Blogger.com. A blog headed London Muslim, contained eight comments made about Mr. Tamiz (comments A-H) in response to an article posted by Mr. Tamiz.
Sequence of Events
Mr. Tamiz’ article was posted on 27 April 2011 and comments A-H were written during 28-30 April 2011. Mr. Tamiz initially complained to Google using its “Report Abuse” facility on 29 April but received no response until after he wrote a letter of claim, which was passed to Google, who responded on 8 July, asking Mr. Tamiz for confirmation that comment A was untrue. Mr. Tamiz gave the confirmation and also complained for the first time about comment B. On 19 July, Google sought permission to forward the complaint to the bloggers concerned. Mr. Tamiz gave this permission on 22 July and at the same time extended his complaint to include comments C, D, E, F and G. On 11 August, Google forwarded the complaint to the bloggers concerned and on 14 August the article and the blog posts were removed by the bloggers voluntarily. Earlier, Google itself had indicated that it would not be removing the posts despite having the technical ability to do so.
On 16 August, Mr. Tamiz issued proceedings against Google for defamation, citing comments A-G and adding for the first time a complaint about comment H. Mr. Tamiz claim centered on the period after he had notified Google of his complaints. He did not issue proceedings against the authors of the comments or the original article. This was largely for practical reasons as each of these had been posted anonymously. Mr. Tamiz succeeded in obtaining leave from the English High Court to serve proceedings on Google out of the UK jurisdiction in California. Google subsequently applied to have that order set aside and at the same time asked the court to decline jurisdiction over the defamation claim altogether.
Mr. Justice Eady found for Google on each of the key issues in the case. The court had granted Mr. Tamiz permission to serve Google outside the UK jurisdiction on the basis that he had sustained damage (to his reputation) within it. Eady J said that Mr. Tamiz actually needed to demonstrate that there was “real and substantial publication” of comments A-H in the UK. The fact that these comments had appeared on the Internet was not enough. Mr. Tamiz had to show that they had been downloaded and read by identified individuals who had given the comments a measure of credence (such that his reputation could be affected), i.e. they had been read by people other than merely his supporters or those in his “camp,” who would not attach any weight to the words.
Eady J found that some of the comments – A, B and D – might be given credence as they contained allegations of criminal conduct. This was likely to adversely affect Mr. Tamiz’ reputation and so could form the basis of a defamation claim.
Was Google a Publisher?
Having concluded that comments A, B and D were sufficient for a cause of action for defamation, Eady J then held that Google was not liable for defamation. For Google to be liable for defamation, Eady J would have had to be satisfied that Google was a “publisher” of the comments. He found that Google’s role in relation to the London Muslim blog, and indeed all blogs hosted on Blogger.com, was neutral and passive and not in the nature of a publisher. The fact that Google had been notified of comments A-H did not suddenly convert Google into a publisher. Also, the mere fact that Google had the technical capability to remove the offending posts did not change its status to that of publisher. Eady J used the analogy of graffiti on a wall. Google was no more a publisher of comments A-H than the owner of a wall was the publisher of graffiti comments painted there.
As Google was not a publisher of comments A-H the claim against it for defamation could not succeed.
Would Defenses Be Available?
Eady J went on to consider whether or not two statutory defenses would have been available to Google had it been a publisher.
The first defense was under Section 1 of the Defamation Act 1996 provides that a person has a defense to a claim for defamation if he can show that:
- He was not the author or publisher of the comments;
- He took reasonable care in relation to their publication; and
- He did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
In relation to ground (1), the Defamation Act states that a person shall not be regarded as a publisher if he is only involved as “the operator or provider of access to a communications system by means of which the comment is transmitted or made available by a person over whom he has no effective control.” Eady J said that these words were an accurate description of Google’s role in this case, meaning that Google could not be regarded as a publisher.
In relation to ground (2), Eady J was satisfied that taking around three weeks to forward the complaint to the bloggers resulting in the comments being removed was a reasonable, albeit dilatory, response by Google.
In relation to ground (3), Eady J said that comments A, B, and D were on the face of it defamatory because of their nature. However, this fact was not enough in itself to deprive Google of the defense. Google would not know whether or not defenses were available to the bloggers. Because of this, merely notifying Google of the comments was not sufficient to cause Google to “know or have reason to believe” that it contributed to the publication of defamatory statements. Google would need more information about the nature of Mr. Tamiz’ claim (some sort of “adequate substantiation”) before it could be deprived of the Section 1 defense. Accordingly, this defense would have been available to Google.
Defense Under the E-Commerce Directive
Article 14 of the E-Commerce Directive provides that a service provider will not be liable in respect of unlawful content that they host unless they know about the unlawful content or do not remove it expeditiously once they become aware of it. Although comments A, B and D were on the face of it defamatory, Eady J again found that this was not sufficient to make Google aware of the unlawful nature of the content. Google was not in a position to assess whether or not the bloggers might have a defense, making the comments lawful. For Google to be fixed with actual knowledge, Mr. Tamiz would have needed to do more than simply notify Google of the comments. He would have had to give Google much more information about his claim by way of “adequate substantiation” of his allegations. Accordingly, Google would again have been entitled to rely on the Article 14 defense.
“The Game Would Not Be Worth the Candle”
Finally, Eady J said that in the event that Google was liable for defamation, the period of its liability (from notification to removal by the bloggers) was so short that it could be regarded as trivial and not such as to justify the maintenance of the proceedings. In other words “the game would not be worth the candle.”
The Importance of This Judgment
This judgment is important for four reasons:
- The clarification of the law surrounding ISP liability. Google was found not to be a publisher because of its passive and neutral role. Previous authorities on this issue were conflicting.
- The expanded notification requirement. Only if a claimant gives an ISP full information about the nature of his claim by way of “adequate substantiation” will the ISP be deprived of the Section 1 and Article 14 defenses. Merely notifying an ISP that an offending post exists and asking for it to be removed will not be enough. Following this case, anyone who believes they are being defamed online must notify the ISP concerned as soon as possible giving as much detail as they can.
- The assessment of what is reasonable care for the section 1 defense. The court was satisfied that taking around three weeks to forward Mr. Tamiz’ complaint to the bloggers was reasonable action. This could be applied by analogy to what would amount to “acting expeditiously” for the purposes of the Article 14 defense. It might be said that three weeks where remarks which are defamatory on their face are involved is actually quite a long time.
- The finding that the “game would not be worth the candle.” Usually a publisher of defamatory material without a valid defense is held to be liable however long or short the defamatory material is available. The court usually deals with claimants in such circumstances by making a nominal award of damages (and refusing to award them costs); in particular if the claimant is not able to demonstrate that there has been a widespread negative impact on their reputation.
ISPs and website operators will welcome this decision which, in practice, may limit the circumstances in which they could be found liable for defamation in respect of content which they host. However, they should not rely solely on this judgment by way of protection against liability and to minimize the risk of becoming embroiled in proceedings (whether or not they are subsequently successful) they should continue to operate a prompt and effective notice and take down policy. ISPs should also avoid moderating any user generated content as previous decisions have indicated that this could prejudice their ‘neutral and passive’ role and convert their status into that of publisher.