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Case law analysis: Payam Tamiz v. Google Inc., Court of Appeal  EWCA Civ 6, by Ashley Hurst and Tamsin Blow of Olswang.
In the long awaited judgment in Payam Tamiz v. Google Inc.  EWCA Civ 68, the Court of Appeal has provided non-binding guidance that blogging platforms may be liable for the publication of defamatory material that they host. But the Court of Appeal ducked important issues, leaving as many questions as answers about the potential liability of internet intermediaries for online content.
Payam Tamiz brought proceedings against both Google Inc. and Google UK Ltd in respect of defamatory comments on a blog hosted by Google via the 'Blogger' platform. Over a period of three months, Tamiz had sent Google a series of complaints about six different comments which he alleged were defamatory (but only in relation to some of them did he expressly state that they were false). It was not until three weeks after the last of these complaints was received that Google notified the blogger of the complaints. The comments were then taken down by the blogger.
There was found to be no triable claim against Google UK Ltd because it has no responsibility for the Blogger platform. However, Tamiz was granted permission by a Master to serve proceedings on Google Inc. in California. Google applied to the High Court to set aside that order on the basis that the courts of England and Wales did not have jurisdiction to try the claim or should not exercise their jurisdiction to try the claim.
The first instance decision
At first instance, the High Court declined jurisdiction and set aside the previous order for service out on Google. In coming to this conclusion, Eady J held that Google's role in relation to content on the Blogger platform was merely "passive," and material posted on Blogger was comparable to graffiti put on a wall owned by Google. The wall owner should not be responsible for the graffiti even if it was told about it and did not scrub it off the wall. On this basis Google was not a publisher at common law of material on Blogger either before or after receiving Tamiz's complaint.
Eady J also held that even if Google was a common law publisher, it would be likely to have a defence both under section 1 Defamation Act 1996 ('Section 1') and Regulation 19 of the E-Commerce Regulations 2002 ('Regulation 19') or because the claim was an abuse of process because "the game would not be worth the candle" (applying the Court of Appeal decision in Jameel v. Dow Jones  QB 946).
This was a very significant decision for internet intermediaries and inconsistent with a previous decision in Godfrey v. Demon Internet  QB 201. In Godfrey, the host of a discussion forum delayed removing defamatory material following notification and was found liable for the material as a common law publisher.
Tamiz appealed the decision to decline jurisdiction and very nearly succeeded. On the crucial question of whether Google was a common law publisher, the Court of Appeal disagreed with Eady J at first instance and found that Google was arguably a common law publisher once it had knowledge that it was hosting the defamatory material in question. However, the appeal was unanimously dismissed on the Jameel abuse of process grounds, an issue that had only been considered very briefly at the High Court hearing.
The Court of Appeal found that the damage in question, sustained in the period between notification of the complaint and removal of the defamatory comments (the precise length of this period was disputed but was at least five weeks), was 'trivial.' In particular, the 'nature of the blog' meant articles and comments quickly moved down the blog and 'receded into history' so by the time Google had been notified, the statements would be placed so low that it was 'highly improbable that any significant number of readers will have accessed the comments' before they were taken down. The potential damage was limited to the period after notification because whilst Google could not reasonably be considered a publisher before receiving a notification, it was at least arguable that it could be a publisher at common law post-notification. It is here that the Court of Appeal fundamentally departed from Eady J's decision, rejecting the analogy of Google as the owner of a large wall which was suddenly festooned with graffiti. Instead, the Court preferred the approach taken in the case of Byrne v. Deane  1 KB 818, where a golf club secretary was responsible for a notice they were aware had been put on the club notice board.
Google's operation of a blog was akin to a notice board for which Google provided bloggers with tools to design their part of the notice board and reserved the right to remove or block access to any content that did not comply with its terms. In that sense it had associated itself with or made itself responsible for the continued presence of the material online if, once material was brought to its attention, it chose not to take it down.
The Court of Appeal also considered that it was arguable that Section 1 will not protect blog operators after they are on notice of defamatory material. It was not arguable that Google was a commercial publisher of the contents of the blog and so Google could benefit from the defence provided it took reasonable care in relation to the publication and did not know or have reason to believe that it was causing or contributing to the publication of defamatory statements. However, after Google received the complaint from Tamiz it was arguable that it knew or had reason to believe that it was contributing to the publication of a defamatory statement. On the facts, although Google's response had been 'somewhat dilatory,' a delay of over five weeks in relation to some complaints did not take it outside the bounds of a reasonable response for the purposes of Section 1.
This was undoubtedly a lucky escape for Google on the facts. However, the principle that Google was arguably liable as a common law publisher after notification is very significant and is more consistent with the previously understood position than the approach adopted by Eady J at first instance. What it means in practice is that any internet intermediary that receives a complaint about material that it hosts cannot simply ignore it and will have to ask itself a number of questions in deciding how to respond:
First, at what point does it become a common law publisher of that material? This is likely to be a period very shortly after it has assumed knowledge of the relevant material (usually through notification).
Secondly, at what point having been notified of defamatory material will it be said not to have taken reasonable care for the purposes of Section 1 if it does not remove the material? In Tamiz, a period of just over five weeks was just about acceptable but it would be extremely dangerous for internet intermediaries to treat that as any kind of benchmark, particularly in respect of serious allegations.
Thirdly, and perhaps most crucially in practice, at what point is it on notice that material is 'unlawful' (as opposed to merely defamatory) for the purposes of Regulation 19 such that it must act 'expeditiously' to remove it? Unfortunately, the Court of Appeal entirely ducked this issue. Unlike Section 1, Regulation 19 is not a complete defence but only a defence to a damages claim (it does not prevent internet intermediaries being subject to an injunction). However, it has become more commonly used in practice than Section 1 because it applies more widely than Section 1 to cover, for example, copyright claims. It also requires claimants to demonstrate that the material in question is unlawful and not simply the lower standard of 'defamatory.'
But it is not always easy for internet intermediaries (particularly without specialist legal advice) to determine whether they have sufficient knowledge to determine whether material is unlawful or not. For example, is it sufficient for a claimant to assert that material is unlawful or is some kind of evidence required? In respect of a libel complaint, does the claimant need to consider each of the complex defences to libel such as honest comment and qualified privilege?
In the Tamiz case, at first instance counsel for Google highlighted the absence of any "details of the unlawful nature of the activity or information in question." No explanation was offered as to the extent of inaccuracy or the inadequacy of any defence. Eady J found that whilst it may be thought by Mr Tamiz to be implicit in his complaints that he was denying, outright, any allegation of theft or drug dealing, it cannot be right that any provider is required to take all such protestations at face value. He therefore found that more was required for a provider to acquire a sufficient state of knowledge to be deprived of the statutory protection. Unfortunately, however, the Court of Appeal did not examine this analysis. So we know that more than a bare assertion is required from claimants before the intermediary is properly on notice for Regulation 19 purposes, but what exactly does that mean?
The Ministry of Justice was trying to grapple with the same question in the context of the new defence provided by clause 7 (previously clause 5) of the Defamation Act 2013, which has now been given royal assent. This will provide a new defence to website operators in circumstances where, having been correctly notified of defamatory material on their websites, they follow a procedure designed to put claimants in touch with the author. The contents of the complainant's notice of complaint for the purposes of this defence have been the subject of considerable debate and will only be clear once the Government publishes the draft Regulations, which are envisaged to sit alongside the clause 7 defence. However, the indications from the Ministry of Justice are that the Regulations will include a requirement for complainants to at least explain which facts are untrue (addressing the defence of justification) and why any opinions are unsupportable (addressing the defence of honest comment). This is a good start but claimants will still be able to send notice of complaint to internet intermediaries which comply with clause 7 but which are completely wrong as a matter of law and fall well below the 'unlawful' threshold. And so a combination of Tamiz v. Google and the new clause 7 of the Defamation Act 2013 do very little to clarify the law and do even less to give internet intermediaries certainty in practice. As a result, although deep-pocketed internet intermediaries may be prepared to defend claims, smaller ones are likely to continue to simply remove material upon complaint. With that comes an inevitable chilling effect on freedom of expression.
Ashley Hurst Partner
Tamsin Blow Associate