Tamiz v Google Inc Google UK Ltd

An Internet platform provider is not necessarily a publisher of user-generated defamatory material. Where its role is purely passive, and it does not create, select, solicit, vet or approve the content, notification of a complaint does not automatically make it a publisher or authoriser of publication. The court must assess the provider’s knowledge, control and conduct in the particular circumstances. A claimant must also show a real and substantial publication capable of affecting reputation; Internet access alone is insufficient. Allegations of criminal conduct may satisfy that threshold, whereas material that is merely vulgar abuse may not. Alternatively, the statutory defence in section 1 of the Defamation Act 1996 and the safe-harbour protection in Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 may apply.

The claimant brought libel proceedings against Google Inc and Google UK Ltd concerning eight anonymous comments posted on a Blogger.com blog. He did not sue the original blogger or the individual commentators. Google Inc, a United States corporation, applied to set aside permission to serve the claim form out of the jurisdiction under CPR Part 11 and sought a declaration that the court lacked jurisdiction or should decline to exercise it.

The issues included whether there had been a real and substantial tort within England, whether Google Inc was a publisher at common law, and whether it was protected by section 1 of the Defamation Act 1996 or Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002.

1. The court declined jurisdiction and set aside the Master’s order permitting service out of the jurisdiction.

2. Under PD6B of CPR Part 6, a tort claim based on damage within the jurisdiction requires a pleaded and evidential basis for a real and substantial publication. Publication cannot be inferred merely because defamatory material was accessible on the Internet. The claimant must show grounds for believing that the material was given some credence and was therefore capable of affecting reputation.

3. The eight comments had to be assessed individually. Allegations of drug dealing and theft were capable of causing reputational damage even with restricted publication. A further comment alleging hypocrisy was not incapable of founding a claim at the interlocutory stage. Other comments were effectively vulgar abuse and would not constitute a real and substantial tort. The presence of nonsense or abusive material elsewhere in a discussion did not automatically determine the character of every comment.

4. The common-law question whether Google Inc was a publisher was fact-sensitive. Its role as a passive platform provider, which did not create, select, solicit, vet or approve the content and was not required to take a positive technical step to maintain its accessibility, did not make it a publisher or authoriser of publication. Notification of a complaint did not automatically alter that status. The court followed the approach in Bunt v Tilley and distinguished the automated search-engine context considered in Metropolitan International Schools Ltd v Designtechnica Corpn.

5. Alternatively, Google Inc was not a commercial publisher within section 1(2) of the Defamation Act 1996. Its service was analogous to providing access to a communications system under section 1(3)(e). Its response, although dilatory, was within the bounds of reasonable care. Notification established that the relevant allegations were prima facie defamatory, but did not establish knowledge that Google Inc had caused or contributed to their publication. Any potential liability was also trivial in the sense identified in Jameel (Yousef) v Dow Jones & Co Inc.

6. In any event, Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 applied. A provider is not deprived of protection merely because it receives a bare notification that material is defamatory. It must have actual knowledge of unlawful information, or awareness of facts and circumstances from which unlawfulness would have been apparent. The notification here did not provide sufficient details addressing falsity or the possible availability of defences.