The new immunity for websites which host user generated content
The recent case of Tamiz v Google (2012) is revolutionary. It marks a sea change in the law applicable to websites which host user generated content, effectively providing complete immunity from defamation claims even after a complaint is made and the offending material drawn to the attention of the website host.
This is 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 participate in its publication. Thereafter, if a complaint was made, the website host had to take down the material or else assume responsibility for leaving it up. This has all changed following Tamiz v Google.
The case involved allegations posted about Mr Tamiz on the Blogger.com service provided by Google. Blogger.com is a platform which allows users to create an independent blog free of charge. 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 accused him of being a drug dealer and having stolen from a previous employer. Mr Tamiz complained to Google about these comments soon after they were posted but Google did not take them down. Rather, Google forwarded the complaint to the owner of the blog who decided to take down the blog post and the associated comments. However, Mr Tamiz sued Google for the period the comments remained on the website after he had complained to Google.
Google contended that it has no control over any of the Blogger.com content. It does not create, select, solicitor, 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. As summarised by Mr Justice Eady "[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."
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. Moreover, 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.
This case has very far reaching implications. It potentially means that websites which host user generated content can ignore complaints whereas before they had to take down the material or else assume responsibility for it following a complaint. This could lead to the continued publication of far more controversial and defamatory material than before. It also denies claimants of a simple and easy means by which they can have defamatory material removed from websites.
However, it would be brave of a website host now to scrap its notice and takedown procedure. The case is not a strong precedent: it is only a first instance decision, it is susceptible to being pigeon holed as specific to its facts (particularly given how it seems to cut across how the law was widely understood) and it might also be appealed and overruled. Nevertheless, it might mark the beginning of a change in how the law of defamation is applied to websites which host user generated content and no doubt one which those websites will seek to develop and expand the next time they are in court.
Rhys Griffiths is a Senior Associate and a member of the Defamation Group at Field Fisher Waterhouse LLP. He acts for Claimants and Defendants and has particular expertise in online issues having acted in cases such as Smith v ADVFN.