Tamiz v Google Inc
In Tamiz v Google Inc [2013] EWCA Civ 68 Tamiz appealed against a decision in the lower court to allow service of proceedings on Google out of the jurisdiction. Google had a blogger platform. Tamiz complained to Google that a blog on the platform contained defamatory statements about him.
It was two months before his complaint reached Google and a further one month after that Google wrote to the blogger with a request to remove the comments, which the blogger did three days later.
Tamiz issued a libel claim against Google.
The Judge below found that three of the comments were arguably defamatory but that Google had not published them. Even if Google was a publisher, the court found that conditions under the Defamation Act 1996 section (1) were not satisfied as Google did not issue the material to the public, had taken reasonable care in relation to Tamiz’s complaint, even though it was four months before the blog was removed, and had no reason to believe that it had done anything to cause or contribute to publication. The Judge found the period between notification and removal was so short, that liability was so trivial, that maintenance of proceedings was not justified.
On appeal, the court found that the Judge had been wrong to regard Google’s role as only passive. It did facilitate publication of the blogs but its involvement was not to make it a primary publisher. The court considered it was doubtful that prior to the notification of the complaint Google would be considered to be a secondary publisher, facilitating publication in a manner analogous to a distributor because it couldn’t be said to have known or reasonably to have known about the comments.
After notification, if Google allowed defamatory material to remain, it might be inferred to have associated itself with or to be made responsible for the material and thereby, then to be a publisher of the material.
That inference couldn’t be drawn until Google had had an opportunity or reasonable time to remove the comments. The court thought that it was open to argument that the time taken to respond was sufficiently long to leave room for inference adverse to Google. It was therefore an arguable case that Google was a publisher.
The court leant towards the conclusion that once notified, Google had reason to believe that what it did caused or contributed to continued publication of the comments.
The Court of Appeal agreed with Eady J that on the facts, the case was too ‘trivial’ to be allowed to proceed (following the key House of Lords case of Jameel v Dow Jones [2005] EWCA Civ 75 ). The Court found it was “highly improbable” that a significant number of people would have read the comments in question in the period between notification and removal, and hence any reputational damage during the relevant period must have been so trivial that “the game would not be worth the candle”.
“The provision of a platform for the blogs is equivalent to the provision of a notice board; and Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the notice board and by providing a service that enables a blogger to display advertisements alongside the notice on his part of the notice board. Most importantly, it makes the notice board available to bloggers on terms of its own choice and it can readily remove or block access to any notice that does not comply with those terms”.
Mr Tamiz himself lost but the case is helpful to other claimants hoping to remove defamatory material from Blogger. ISPs will have to react fast to notification, to be safe from being saddled with liability as a publisher of users’ defamatory postings.
Google’s role as a search engine was not affected by the Tamiz decision. In the July 2009 ruling (Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc [2009] EWHC 1765 (QB)) the court held Google was not a publisher of defamatory material in search results. This ruling does not effect that case.