Davison v Habeeb & Ors

For permission to serve a claim in tort out of the jurisdiction, internet publication must amount to a real and substantial tort. Publication to a small number of readers may establish some damage, but the claim may nevertheless be disproportionate where no worthwhile vindication can be obtained and substantial litigation costs would be incurred.

A platform hosting user-generated content may arguably be a common-law publisher, particularly after notification of allegedly defamatory material and where it has the ability to remove it. However, liability for damages may be excluded by Electronic Commerce (EC Directive) Regulations 2002, regulation 19, where notification does not give the provider actual knowledge, or awareness of facts making unlawfulness apparent. A complaint must be sufficiently precise and substantiated.

The claimant brought defamation and related claims concerning articles published on websites hosted through Blogger.com. She sought to proceed against Google Inc, a Delaware corporation based in California, and obtained permission to serve the claim outside the jurisdiction under paragraph 3.1(9) of CPR Practice Direction 6B.

Google Inc applied to set aside that order, arguing that there was no real and substantial tort within the jurisdiction, no good arguable case that it was a publisher, and no good arguable case that it was liable under regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002. The central issues were whether the claimant had established substantial publication, whether Google Inc was arguably a publisher, and whether notification created the knowledge required for liability.

1. Real and substantial tort. The claimant had shown, at most, publication to five people in England who were followers of the relevant blog. That supported an inference that they had read at least some of the material, but there was no basis for inferring wider publication. Following Jameel v Dow Jones & Co Inc [2005] QB 946, the court had to balance article 10 freedom of expression against protection of reputation. Publication to five people who neither knew nor were known to the claimant, coupled with the absence of any realistic prospect of worthwhile vindication against Google, did not amount to a real and substantial tort. The order permitting service out was set aside on this ground.
2. Publication at common law. The issue was arguable. Blogger.com was more than a mere conduit because Google provided and hosted a platform designed to enable users to publish material and could remove offending content. The court could not determine summarily whether Google was analogous to the passive facilitators in Bunt v Tilley [2007] 1 WLR 1243 or to the host in Godfrey v Demon Internet Ltd [2001] QB 201. After notification, continued hosting might also amount to consent or acquiescence under Byrne v Deane [1937] 1 KB 818.
3. Regulation 19. Blogger.com provided an information society service for remuneration, notwithstanding that users did not pay directly, because revenue was generated through advertising. Google was therefore in principle entitled to rely on regulation 19. The relevant question was whether it had actual knowledge of unlawful information, or awareness of facts or circumstances from which unlawfulness would have been apparent.
4. The claimant’s complaints were opposed by the author’s account that the allegations were true and based on a police raid. Google was not in a position to adjudicate between those competing accounts. The notifications therefore did not provide actual knowledge or sufficient awareness of unlawfulness. There was no good arguable case that Google was liable in damages or other pecuniary remedies under regulation 19, whether before or after notification.
5. The order of Master McCloud dated 20 January 2011 granting permission to serve Google Inc outside the jurisdiction was set aside. The question of an injunction was left open.

First-instance decision. No prior appellate decision was stated in the judgment.