Tamiz v Google Inc

An internet platform provider which hosts independently controlled blogs is not a primary publisher merely because it supplies the platform and related tools. Before notification, a host lacking knowledge of defamatory content will not ordinarily be liable as a secondary publisher.

After notification, however, a host with power to remove the material may become a publisher if, after a reasonable time, its inaction permits an inference that it associated itself with or accepted responsibility for the continued publication. Even an arguable claim must not proceed where publication and reputational harm within the jurisdiction are so trivial that no real and substantial tort has occurred.

The appellant sought to sue Google Inc in libel over comments posted by third parties on an independently controlled blog hosted through its Blogger service. Three comments were arguably defamatory. Google Inc forwarded the complaint to the blogger after a delay, and the blogger removed the material.

Eady J, in [2012] EWHC 449 (QB), set aside permission to serve Google Inc in California. He held that Google Inc was not a publisher, would in any event have a defence under section 1 of the Defamation Act 1996, and faced only trivial potential liability. The appeal concerned publication, the statutory defence, whether a real and substantial tort had occurred, and regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002.

1. Appeal dismissed. Although the appellant had an arguable case that Google Inc became a publisher after notification and that its section 1 defence was not unassailable, any actionable publication and resulting reputational damage were too trivial to justify service out of the jurisdiction or continuation of the proceedings.
2. Google Inc was not a primary publisher. It did not create the blogs, exercise prior control over their content, or employ or appoint the bloggers and commenters as agents. Its provision of the platform, design tools, URLs and advertising facilities facilitated publication but did not place it in a position equivalent to an author, editor or newspaper proprietor. Before notification, the authorities on innocent dissemination also told against treating it as a secondary publisher because it neither knew nor ought reasonably to have known of the comments: paras 23–26.
3. After notification, it was arguable that Google Inc became responsible for continued publication. Its service was more closely analogous to a controlled noticeboard than to a passive conduit or a wall bearing unsolicited graffiti. Because it could readily remove or block offending material, allowing defamatory material to remain after a reasonable opportunity to act could support an inference of association with or responsibility for its continued presence under Byrne v Deane [1937] 1 KB 818. The delay of more than five weeks for two comments made that inference arguable: paras 27–36.
4. For section 1 of the Defamation Act 1996, Google Inc was not a commercial publisher which had issued the comments. Its role was analogous to providing access to a communications system operated by persons over whom it lacked effective control. The judge was entitled to find that forwarding the complaint, though dilatory, remained within the bounds of reasonable care. It was nevertheless arguable that, after notification, Google Inc knew or had reason to believe its continued hosting caused or contributed to publication. The cumulative statutory defence was therefore not unassailable: paras 37–46.
5. The comments had receded within an expanding blog discussion before any period of arguable liability began. It was highly improbable that a significant number of readers accessed them between that point and removal. Any resulting reputational damage was therefore trivial, so no real and substantial tort justified the disproportionate use of court resources: paras 48–51.
6. The court did not determine the regulation 19 defence under the Electronic Commerce (EC Directive) Regulations 2002: para 52. Richards LJ gave the judgment; Sullivan LJ and the Master of the Rolls agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The order setting aside permission to serve Google Inc outside the jurisdiction remained effective: [2013] EWCA Civ 68.
2. High Court, Queen’s Bench Division: Eady J set aside permission to serve Google Inc in California. He held that Google Inc was not a publisher, had statutory defences and, in any event, faced potential liability too trivial to justify the proceedings: [2012] EWHC 449 (QB).
3. Master: Master Eyre had granted permission to serve the claim form on Google Inc in California.