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Normality restored: website hosts may again be liable for defamatory user generated content

19/02/2013

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United Kingdom

Normality restored: website hosts may again be liable for defamatory user generated content

Introduction

The case of Tamiz v Google (2012) cased a stir in the field of online defamation because it created new immunity for websites against liability for defamatory user generated content.  This applied regardless of whether someone had complained to the website and asked for the material to be removed: such complaints could effectively be ignored.  A copy of Rhys' previous alerter on this case can be found here

The Court of Appeal has now reversed this part of the decision and so normality has been restored.  In this alerter Rhys will explain the case and the significance of the Court of Appeal's decision for website hosts.

Background

The first instance decision in Tamiz v Google was remarkable because it was totally at odds with the law as it stood.  The legal position had been clear: website hosts were not liable for defamatory user generated content provided they did not in some way participate in its initial publication, for instance by vetting or editing it before publication. Thereafter, if a complaint was made, the website host had a choice to make: take down the material, in which case it would not be liable; or leave the material on the website, in which case it would assume responsibility and liability for it if it turns out to be unlawful.

The 'intermediary' defence outlined above is provided for by the overlapping provisions of s.1 of the Defamation Act 1996 and Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, as defined and developed by a body of case law starting with the landmark case of Godfrey v Demon Internet Limited [2001] QB 201. The use of the intermediary defence for website hosts is well known and well understood – both by lawyers and those involved in dealing with complaints about user generated content. However, this all appeared to change following Tamiz v Google.

The facts of the case

The case involved allegations posted about Mr Tamiz on the Blogger.com service provided by Google. Blogger.com is a platform which allows users in any part of the world to create an independent blog free of charge. Importantly, if the user does not have his/her own webpage they can use one hosted by Blogger.com, as was the case here.

The relevant blog concerned an article about Mr Tamiz’s resignation as a Conservative Party candidate for local elections in Thanet. This prompted a number of comments from readers of the blog, some of which made serious allegations about Mr Tamiz. For instance, one of the comments read:

"Anonymous said…

I know Mr Tamiz very well and am surprised that it has taken this long for all this to come out, Payam is a known drug dealer in thanet and has been taken to court for theft from his employers tescos in Ramsgate. His whole family are criminals his mother Mrs Sohela Tamiz has several convictions for theft and shoplifting and got sentenced at Maidstone crown court."

Mr Tamiz complained to Google about the various comments on the basis that they were defamatory. However, instead of removing them immediately in line with the intermediary defence outlined above, Google decided to forward the complaint to the author of the blog page, which in fact led the blogger voluntarily to remove the blog and the comments complained of. In spite of this, Mr Tamiz sued Google for the period the comments remained on the website after he had complained to Google until they were removed by the author of the blog.

Google's position

Google contended that it has no control over any of the Blogger.com content. It does not create, select, solicit, vet or approve the content – this is all controlled by the blog owner. Blogger.com merely provides the tools for users to operate and maintain their sites. Moreover, Google had no way of knowing whether the comments complained of were true or not, or whether they were eligible for some other defence. It cannot reasonably be expected to investigate and determine the truth or falsity of allegations made by bloggers when a complaint is made. Mr Justice Eady summarised Google's position as follows:

"[I]t may perhaps be said that the position is, according to Google Inc, rather as though it owned a wall on which various people had chosen to inscribe graffiti. It does not regard itself as being more responsible for the content of these graffiti than would the owner of such a wall."

On this basis, Google contended that it was not a publisher of the relevant comments. In any event, even if it was, it was entitled to make use of the usual intermediary defence.

The decision at first instance

Mr Justice Eady agreed with Google. He noted that Google was merely a provider and facilitator of the means by which the defamatory comments were published. Its role was a passive one and it did not publish or authorise publication of the defamatory statements.  In adopting Google's analogy, Mr Justice Eady stated:

"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."

In addition, Mr Justice Eady held that there was no reason why this position should change following notification given that Google attempted to remain neutral on the issue and given that Google is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material following a complaint. Accordingly, Mr Justice Eady held that Google should not be classified as a publisher of the comments complained of and so it could have no liability in defamation for those words.

In addition to this finding on the issue of whether Google was a publisher of the words complained of, Mr Justice Eady went on to rule that, if he was wrong about that, and Google was a publisher of the words complained of, it would have been entitled to rely on the usual intermediary defence.

The Court of Appeal

The Court of Appeal agreed that Google should not be considered as a publisher up until notification of the complaint by Mr Tamiz.  However, after notification, the Court of Appeal disagreed with Mr Justice Eady and his graffiti analogy, preferring instead to adopt an analogy with a notice board:

"The provision of a platform for the blogs is equivalent to the provision of a notice board; and Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the notice board and by providing a service that enables a blogger to display advertisements alongside the notices on his part of the notice board.  Most importantly, it makes the notice board available to bloggers on terms of its own choice and it can readily remove or block access to any notice that does not comply with those terms."

Crucially, the Court of Appeal stated that if Google allows defamatory material to remain on a blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog.  In those circumstances the Court of Appeal concluded that Google could be considered to be a publisher of the material.

The Court of Appeal also found against Google on the application of the intermediary defence provided by section 1 of the Defamation Act 1996.  However, in spite of these findings, the Court of Appeal ultimately found in favour of Google on the basis that it is highly improbable that a significant number of readers will have accessed the comments in the material time and so any damage to Mr Tamiz's reputation will have been trivial.  On this basis, the Court concluded that "the game would not be worth the candle" and so the appeal was dismissed.

Comment

The Court of Appeal's decision represents a return to normality for those websites which host user generated content.  This means that they are effectively immune from liability for defamatory user generated content provided that do not in some way participate in the initial publication of defamatory comments.  Thereafter, once a complaint is made, websites will need to remove the material to benefit from the intermediary defence or else be prepared to assume responsibility for the lawfulness of the material complained about.

Rhys Griffiths, Partner in Fieldfisher's Dispute Resolution Group.

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