Google can be liable as publisher

The Court of Appeal has handed down judgment in the landmark case of Tamiz “v- Google. The appeal brought by Brett Wilson LLP on behalf of the Claimant Payam Tamiz is the first time that the Court of Appeal has addressed the issue of internet service providers ('IsPs') liability in defamation. Whilst the appeal was ultimately dismissed on ˜Jameel grounds, the Court of Appeal rejected the finding of Mr Justice Eady in the High Court that Google Inc, in relation to its Blogger service, was not a publisher at common law. It also disagreed with Eady Js finding that Google Inc had an unassailable defence to Mr Tamizs claim under section 1 of the Defamation Act 1996. Mr Tamiz is actively considering with us the possibility of appealing to the supreme Court.

Mr Tamiz had initiated libel proceedings in the High Court against Google Inc and Google UK Ltd after Google Inc had failed to promptly remove defamatory comments concerning himself posted anonymously on a blog hosted on Blogger called 'London Muslim'. Mr Tamiz subsequently settled his claim against Google UK Ltd. Mr Tamiz obtained permission from a Master to serve his claim on Google Inc in California. Google Inc applied to the Court to set aside that permission and for a declaration that the Court had no jurisdiction to hear the claim or, if it did, that it should not exercise it. The application was heard by Eady J on 16 March 2012. Mr Tamiz represented himself at the High Court hearing.

Eady J acceded to Google Inc's application and declined jurisdiction on four grounds: (1) that Google Inc was not a publisher at common law for the purposes of the law of defamation, whether before or after notification of a complaint (essentially because its role in relation to Blogger was 'passive'); and even if this was wrong, it had unassailable defences to the claim under (2) s.1 of the Defamation Act 1996 and (3) under regulation 19 of the E-Commerce Regulations, and (4) the period of publication between actual notification of the complaint to Google Inc (8 July) and take down (14 August) was so short that any potential liability that arose was so trivial as not to justify the maintenance of the proceedings (jameel).

Mr Tamiz then instructed Brett Wilson LLP who in turn instructed Counsel Godwin Busuttil. The hearing of the appeal was heard before the Court of Appeal (the Master of the Rolls, Richards LJ and sullivan LJ) on 3-4 December 2012. In its judgment the Court of Appeal dismissed Mr Tamizs appeal on the ground that it was "highly improbable that any significant number of readers will have accessed the comments [during the period between notification to Google Inc and take down]...and in those circumstances the judge was right to consider that 'the game would not be worth the candle. However, before reaching that conclusion, Richards LJ decided that so far as post-notification publication was concerned the claim could not be dismissed on the ground that Google Inc was not a publisher of the comments, and that Eady J had not been right to hold that section 1 of the Defamation 1996 provided Google Inc with an unassailable defence. No determination was made on the applicability of regulation 19.

The decision is of considerable significance to IsPs and individuals/corporations who believe they have been defamed online. The High Court decision had suggested that operators of online platforms such as Blogger were effectively immune from defamation claims. The Court of Appeal has now held that this proposition is not necessarily correct.

Commenting on the matter, Mr Tamizs solicitor Iain Wilson said:-

Mr Tamiz is disappointed with the outcome of the appeal but happy to have played a role in clarifying the law for the benefit of others who might be defamed in online publications. Mr Tamiz is actively considering with us the possibility of appealing to the supreme Court.

A link to a full copy of the judgment can be found below:-

http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html

News articles:-

http://www.guardian.co.uk/media/2013/feb/14/google-libel-blogger-posts

http://www.telegraph.co.uk/technology/google/9870456/Google-must-act-on-libellous-postings-court-rules.html

http://www.dailymail.co.uk/news/article-2278657/Blogger-com-libel-case-opens-door-Google-required-monitor-users-posts.html

solicitor with conduct of the case: Iain Wilson

Counsel instructed: Godwin Busuttil of 5RB