UK Court Holds Google Not Liable for Allegedly Defamatory Comments in Hosted Blog
In a suit alleging defamatory statements on a blog hosted by Google, Inc. in the United States, the England and Wales High Court held that Google was a passive platform provider rather than a publisher, and therefore had not committed a tort that could subject it to extra-territorial jurisdiction.
Hosted Website Posted Allegedly Defamatory Comments
Google Inc., a corporation registered in Delaware and headquartered in California, offers the web-hosting service Blogger.com, based in and managed from the United States, which allows Internet users around the world to create an independent blog free of charge. Users without their own domain names can use the Blogger.com domain name for their websites. Payam Tamiz sued Google Inc. for defamation relating to eight comments that were posted on the “London Muslim” blog in April 2011. The statements complained of were posted anonymously as comments on a previously posted article. Several accused Tamiz of being a drug dealer and a thief. Between April and July 2011, Tamiz sent letters to Google alleging that the comments were defamatory. Google forwarded the letters to the blogger, who removed the comments shortly after Tamiz filed suit. In September 2011, a master of the court granted Tamiz permission to serve a complaint on Google in California. Google moved to dismiss for lack of jurisdiction.
Google Is Not a Publisher
The court explained that to serve his complaint out of the jurisdiction, Tamiz must show that a tort was committed within the jurisdiction, under paragraph 3.1(9) of PD6B of CPR Pt 6. To establish common-law defamation, Tamiz had the burden of proving a “real and substantial” publication within the jurisdiction. Tamiz at ¶ 23. Observing that case law has not yet defined how Internet service providers fit into traditional common-law principles on publishing, the court stated:
One needs to be wary of analogies when considering modern technology, but it 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.
Id. at ¶ 10.
Google argued that it had no control over the content on the blog, and thus was not a publisher, but merely a passive service provider. Tamiz claimed that Google became liable for the comments after it became aware of his objections to them. According to the court, Google has a policy of not removing offending material because it is not in a position to investigate and determine a legal challenge to such material. For Google, the court observed, this is a matter both of principle—providing a platform for the free exchange of information—and practicality, in that the blogs on Blogger.com contain over a half-trillion words, and a quarter-million words are added every minute. Google asserted that “Blogger.com merely provides the tools for users to operate and maintain their sites.” Id. at ¶ 35.
The court observed that Google has accepted a responsibility to notify bloggers who have posted material subject to a complaint, but not to legally or factually investigate every complaint received. The court found that being notified of a complaint of alleged defamation did not turn Google into a publisher, even though it had the technical means to remove the material. Reverting to its analogy, the court noted that the ability of the owner of a wall covered with defamatory graffiti to obliterate it with whitewash did not convert the owner into a publisher with the obligation to do so. Accordingly, the court held that Google was not required to remove the offending material even if notified of it, and “should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law.” Id. at ¶ 39.
Statutory Defenses Also Apply
In the event that its holding was erroneous, the court considered an alternative argument under the Defamation Act 1996, which provides a defense to a defendant that “(a)  was not the author, editor or publisher of the statement complained of, (b)  took reasonable care in relation to its publication, and (c)  did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.” “Publisher” is defined as “a commercial publisher, that is, a person whose business is issuing material to the public, [. . .]” Tamiz at ¶ 40 (quoting s. 1(1) and (2)). The court found that Google was not a commercial publisher because it did not itself issue material to the public, which instead was done by the bloggers who used Google’s platform to do so.
The court also found that Google had taken “reasonable care” in regard to Tamiz’s complaint by sending it to the blogger in question, and that Google had no reason to believe that it had caused the publication of a defamatory statement. The court observed that while accusations of theft and drug-dealing are prima facie defamatory, Google was not alleged to have known of these statements before being notified by Tamiz and thus had no reason to believe that it had “caused or contributed to the[ir] publication.” Id. at ¶ 49. Accordingly, the court held that Google would have a defense under the Act.
The court considered another alternative argument that Google had a defense under the Electronic Commerce (EC Directive) Regulations 2002 (“the Regulations”), which pertinently provide:
Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where – (a) the service provider – (i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or (ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and (b) the recipient of the service was not acting under the authority or the control of the service provider.
Id. at ¶ 53 (quoting Regulation 19). The court found that Google was the provider of Blogger.com, which was an information society service, and that the “London Muslim” blogger was a “recipient” of the service, which he used to make information accessible.
In order to have a viable claim under Regulation 19, Tamiz would have to show at trial that Google had actual knowledge of unlawful activity. Mere notice of alleged defamation, however, was not sufficient, the court continued. “[I]t cannot be right that any provider is required, in the light of the strict terms of Regulation 19, to take all such protestations at face value. Clearly more is required for a provider to acquire a sufficient state of knowledge to be deprived of the statutory protection.” Id. at ¶ 60. Thus Google would have a defense under Regulation 19, the court held. Accordingly the court declined jurisdiction, and set aside the order for extra-territorial service.
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