Normality restored: website hosts may again be liable for defamatory user generated content
19 February 2013
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 Field Fisher
Waterhouse's Dispute
Resolution Group.