Richardson v Facebook

An internet service provider is not liable for publication merely because it provides a platform or receives a complaint. Liability requires a pleaded and evidential basis showing that the defendant was responsible for publication, including the power or ability to control offending content where continued publication is relied on. Statutory defences under the Defamation Act 1996 and Defamation Act 2013 presuppose responsibility for publication. Data-protection principles do not determine domestic responsibility for publication in defamation or liability under Article 8. A commercial service provider is not a hybrid public authority merely because it provides valuable services to the public.

The claimant brought separate claims against Facebook and Google UK concerning a fake Facebook profile and a fake Google Blogger posting. She alleged libel and infringement of Article 8. Master Kay QC dismissed both actions, principally because the claimant had sued entities that did not operate or control the relevant services, and refused permission to amend and appeal.

Before Mr Justice Warby, the claimant sought references to the CJEU, anonymity and stays, permission to appeal, and permission to adduce fresh evidence. The central issues were whether the two UK companies could bear responsibility for continued publication, whether the claims under Article 8 could proceed, and whether the CJEU’s decision in Google Spain SL v Agencia Española de Protección de Datos (AEPD) altered that analysis.

1. Applications and appeals. The applications for references to the CJEU, permission to appeal and related applications for anonymity and stays were dismissed or fell away. Fresh evidence consisting of job advertisements was admitted and considered.
2. Responsibility for publication. At common law, an internet service provider is not a publisher where its role is merely passive and instrumental and undertaken without knowledge of the relevant words: Bunt v Tilley [2007] 1 WLR 1243. A provider that facilitates publication may be strictly liable, as in Godfrey v Demon Internet Ltd [2001] QB 201. Under Byrne v Deane [1937] 1 KB 818, responsibility may arise where a person controls the relevant facility, has power to remove an unauthorised and wrongful posting, knows of it, and fails to exercise that power.
3. Statutory provisions. The defences in section 1(1) of the Defamation Act 1996 and section 5 of the Defamation Act 2013 are relevant only where the defendant is otherwise responsible for publication at common law. Section 10 of the 2013 Act likewise does not determine a claim against a defendant that was never responsible for publication. The claimant’s pleadings disclosed no coherent factual case that either Facebook UK or Google UK controlled the relevant content. The evidence established that control lay with other corporate entities, and the job advertisements did not create a realistic prospect of proving otherwise.
4. Article 8 and Google Spain. Even assuming a direct Article 8 claim could in principle be brought against a private company, it required a tenable case that the defendant was responsible for publication. Google Spain SL v Agencia Española de Protección de Datos (AEPD) [2014] QB 1022 concerned the territorial application of data-protection law and did not alter domestic principles of publication in defamation or the Human Rights Act 1998. Neither Facebook UK nor Google UK was a hybrid public authority under section 6 of that Act.
5. Disposition. The Master’s conclusions were unappealable. The Facebook and Google actions remained dismissed.

1. Master Kay QC: By orders dated 24 and 26 June 2015, both actions were dismissed on applications by Facebook UK Limited and Google UK. Permission to amend and permission to appeal were refused.
2. High Court (Queen’s Bench Division): Mr Justice Warby dismissed the claimant’s applications for permission to appeal and CJEU references. The related anonymity and stay applications fell away.