Surprising Result in Internet Libel Case

A court has declined to hold Google liable for potentially libellous comments posted on its site, leaving an individual to pursue the posters.

In fact it concluded that Google could not be liable, however libellous the comments, as it had not “published” them.

The ruling by Mr Justice Eady in the High Court was made in a case brought by a former Tory local council candidate Payam Tamiz, who took action after comments were made about him by a user on Google’s Blogger.com platform.

When he complained to Google, asking that the comments be removed, the internet service did not do so. Instead it offered to pass Mr Tamiz’s complaints to the Blogger who did remove them but only, in some cases, months after they first appeared. Mr Tamiz, unable to identify the authors of the comments then brought a claim against Google.

The internet giant defended its case on the basis that it had not published the comments; it simply provided the internet platform for the exchange of comments and information.

Google also claimed that it was protected by Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, which provides companies such as internet service providers with a defence against claims for damages or for criminal liability arising from unlawful activities carried out on their servers provided that “it acts expeditiously to remove or to disable access to the information”, It argued that the information provided to it by Mr Tammiz was ”insufficient to (make it)apparent to the service provider that the activity or information was unlawful”.

The judge held that under English libel law, Google had not published the allegedly libellous comments and (obiter, so not even persuasive of other courts) that had it done so it would have been entitled to the protection given by the Electronic Commerce Regulations.

Google had to show that it did not have knowledge of illegal activity and the court accepted that the mere fact that someone had made a complaint did not mean that Google was aware of illegal activity; as the comments might be perfectly valid. In fact the comments looked highly likely to be libellous.

When the Electronic Commerce (EC Directive) Regulations 2002 came into effect there was concern among proponents of free speech that ISPs would take down anything complained of by anyone as the costs and risk of doing so would be less than the costs of facing an action for defamation from the complainant. Those regulations supposed that ISPs would be “publishing” and thus potentially liable to the complainant.

The judgement in Tamiz-v-Google, whilst not binding on other English courts, swings the balance back in favour of free speech although it will be interesting to see whether ISPs will have the courage to take the same views if the complainant is a large corporation or well-funded celebrity.

ENDS

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