The Boundaries of Platform Liability in Defamation Cases | Critical Essay Example

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Gilbert Taylor
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The Limits of Online Platform Liability for Defamation
The Limits of Online Platform Liability for Defamation

A) Summary of Tamiz v Google Inc. [2013] EWCA Civ 68

(a) The relevant facts

The judgment of the court of appeal gave a judgment with respect to a claim by Mr. Tamiz, the claimant that he was defamed on one of the blogs hosted by Google Inc. and therefore Google Inc. was liable for the damages. The important issues in the case of Tamiz v Google [2013] EWCA Civ 68[1] was the extent of Google Inc.’s liability for defamation. Was, is it the responsibility of the blogger or the platform on which the blog was being hosted?

Google Inc., the responded is a registered company in Delaware with its main location of business based in California. Google Inc. offers variety of internet services including Blogger.com, a service managed and based in United States but is available globally. According to Bailii,[2] blogger is a platform allowing users of the internet worldwide to create a blog independently. “London Muslim” is one of the hosted blogs on Blogger.

Essentially, Tamiz complained that the blog in question was bearing the name “London Muslim” and had eight specific defamatory comments, which were posted on 28th and 30th April 2011. Furthermore, there was a dispute as to when Tamiz first notified of this but later the agreement was that Google Inc. received Tamiz’s letter of claim in early July 2011 and that the letter was then forwarded to the blogger on August 11th 2011 after further email exchanges, after which the blogger removed all the contents voluntarily. In respect to the alleged publication of the comments regarded as defamatory, Tamiz sought damages during the period before their removal.[3]

In the proceedings before the hearing of the court of appeal, permission was granted to Tamiz to serve Google Inc. in California with the claim form. However, on subsequent application by Google Inc., Eady J held that jurisdiction should be declined by the court and that, therefore, service order of the jurisdiction should be set aside. Eady J in reaching the decision found that three of the anonymous comments were defamatory arguably, but at common law, Google Inc. was not the publisher of the comments. It was held that in any event, Google Inc. could rely successfully upon both the defence under regulation 19 of the 2002 Electronic Commerce Regulation, and the section 1 of the Defamation Act 1996.[4]

Additionally, Eady J accepted that given that the time period between notification of the Google Inc. of the words complained of and the time period they were removed from the blog was so short, and therefore any potential liability was so trivial that the continuing with the proceedings could not be justified. SCL[5] asserted that this was in accordance with the Jameel v Dow Jones [2005] QB 946[6] principles. Moreover, as to the Google UK Ltd, it was found to have been inappropriate been joined in the proceedings since it did not operate or control Blogger.com.

Mr Tamiz appealed against Eady J’s order though not on the aspect of the decision that dealt with Google UK Ltd.

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(b) The legal rules applied in the case

  1. Whether there existed an arguable case to justify that Google Inc. was the publisher of the said comments on the blog.
  2. Whether, if Google Inc. were the publisher, it would have a defence that is unassailable under section 1 of the 1996 Act.
  3. Whether there was any potential trivial liability as to justify continuance of the proceedings
  4. And finally whether Google Inc. if otherwise necessary, under Regulation 19 of Regulations of 2002,[7] would have a defence.

    (c) The legal findings of the court and their rationale for these.


As set out in the judgment of Eady J, the judge held that five out of the eight comments complained could be characterized in this case summary as “ordinary vulgar abuse” where no sensible individual would attach any weight. The judge based his judgment on the cases of Clift v Clarke [2011][8] and Smith v ADVFN Plc [2008].[9] However, Eady J found that three out of the eight comments were defamatory. These comments included allegations that Mr Tamiz had stolen from his employees was a drug dealer and was hypocritical in his attitudes to the women.

At [35] to [38] of Judge Eady J’s judgement, he noted that inter alia that it is impossible virtually for Google Inc. to do editorial control over the blogs content it hosts, which averagely has words equivalent to more than half a trillion, with every minute 250, 000 new statements and words are added. The judge further referred to the submissions that it would be impractical to attribute responsibility for any material publication on any blog hosted by Google Inc., whether after or before report of a complaint. Furthermore, he emphasised on the significance of striving to attain consistency in the face of the technology that is developing rapidly, and to paying proper consideration to the enshrined values in the ECHR.[10]

Additionally, Eady J stated that the fact that an organization in the position of Google Inc. had got notification of a complaint does not change it role and status immediately to that of a publisher. Therefore, if the status of Google Inc. Before complaint notification was that of a facilitator or a provider, it is not easy for the role to be expanded thereafter to that of an individual who acquiesced or authorised a publication. It might be true that Google Inc. had the technical capability of deleting comments and blogs on its platforms, but this by any means does not imply that it had become the authoriser or author of the publication.

Furthermore, he stated that the role of Google Inc. as a provider of platform is purely passive, and therefore, in his view, the situation was similar to the one described in the case of Bunt v Tilley [2007] 1 WLR 1243.[11] He, therefore, ruled that Google Inc. at common law was not liable as a publisher.

B). Supplementary Questions

1) The appeal court judgement uphold the decision of the lower court by Eady J that that Google company was not, in English common law, a publisher of the libel in question and found that despite three out of the eight comments were defamatory, but that on principles of the common law, Google company was not the publisher of the complained words after and before it was notified.[12] However, if it were contrary to that view, then under the common law, Google Company was to be considered as the publisher. However, at section 1 of the Defamatory Act 1996 of would provide Google Inc. with the defence since they took reasonable steps by passing the complaint received from the complainant to the blogger after getting the notification.[13]

2) (a) According to Bailii,[14] the liable persons for defamation are the individuals who were involved in the production of the story. They would include the authors, the editors, the organization publishing and the sources if the quotes in the alleged defamation came from them. Therefore, given that NN offered a publishing platform, they are liable under common laws

2(b) Do websites have a defence under the E-Commerce Directive Article 14 (as applied in the UK by Regulations)?

The hosting defence is derived from Article 14 of E-Commerce Directive (2000/31/EC).[15] The hosting defence limits providers of “information society services” liability where such services entail information storage from or provided by the recipient of the services. The member states including United Kingdom shall make sure that the service providers are not liable for the stored information at the recipients of the services requests, on the condition that: (a) the service provider does not have the actual information or knowledge of the illegal activity regarding the damages claims, or is not cognizant of the circumstances or facts from which the illegal information or activity is apparent;[16] or (b) the service provider, after getting such awareness or knowledge, expeditiously act to disable or to remove the information for access.[17]

Therefore, under Article 14 of E-Commerce Directive (2000/31/EC), NN, which is an England based website, is liable for the damages. Under the first condition, NN was aware of the defamatory information that damaged the reputation of FF. Secondly, under the second condition, as a host of the information provided by the mothers, NN did act expeditiously to disable or remove defamatory comments even after being notified through email by FF, the complainant, on an alleged libellous post to take it down. Moreover, NN did not remove it for two months that further damaged the reputation of FF.

2(c) Do NN have a defence under the (UK) Defamation Act 2013?

In the context of defamation law in determining the publication responsibility, Judge Eady J in the case of Bunt v Tilley[18] emphasized that it is critical to focus majorly on what the individual did or even failed to do, in the communication chain. Therefore, it is clear that the important factor is the state of knowledge of the defendant. If an individual knowingly allows another person to communicate information that is defamatory when there was an opportunity of preventing the publication, then in principle there would be no reason why liability should not be accrued.

Judge Eady continued to assert that imposing legal liability upon anybody under the common law for words publication is essential in demonstrating some degree of awareness or even to some extent the assumption of general responsibility, which for a long time has been recognized as the editorial responsibility.[19]

Under the (UK) Defamation Act 2013, NN still has a defence. To be liable for a publication that is defamatory, of course, is not necessary always to be aware of the content that is defamatory. Publishers and editors are fixed often with the responsibility of their content, notwithstanding their lack of knowledge. However, for a person to be held liable, Bailii[20] indicated that there must be a knowing involvement in the publication process of the exact original, relevant words and statements. It is not enough that an individual merely played the passive instrumental role in the publication process. In this scenario, NN simply played the passive role in providing the publication platform. It did not alter, edited, or even helped in providing the content published therefore not liable.

By the provision of their services, NN plainly facilitates interaction and exchange of tips on how to find nannies amongst mothers. Its involvement, however, does not make it a primary publisher of the comments. As much as it has effective tools for controlling the content, every person has a right to comment and read others comments without the influence of the facilitator. Their position is not comparable to that of the editor or the author of the contents that are defamatory. There is no relationship between the mothers who post comments and NN website. These mothers and NN website are independent of each other and do not act in any way on the behalf of each other.

Moreover, NN has a defence under the (UK) Defamation Act 2013 from the argument that the role of NN is that of a secondary publisher, by facilitating content publication in a manner that is similar to a distributor. Therefore, an individual involved in the dissemination should not be treated as a publisher.

Bibliography



Scl.org, ‘Tamiz V Google: Court Of Appeal Judgment On Defamation Claim’ (2015) <http://www.scl.org/site.aspx?i=ne30583> accessed 5 May 2015.

Bailii.org, ‘Tamiz V Google Inc [2013] EWCA Civ 68 (14 February 2013)’ (2015) <http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html> accessed 5 May 2015

Linklaters.com, ‘Linklaters – EU – How Robust Is The Hosting Defence?’ (2010) <http://www.linklaters.com/Insights/Publication1403Newsletter/20100705/Pages/hostingdefence.aspx> accessed 5 May 2015.

  1. Tamiz v Google [2013] EWCA Civ 68 ↑
  2. Bailii.org, ‘Tamiz V Google Inc [2013] EWCA Civ 68 (14 February 2013)’ (2015) <http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html> accessed 5 May 2015 ↑
  3. Scl.org, ‘Tamiz V Google: Court Of Appeal Judgment On Defamation Claim’ (2015) <http://www.scl.org/site.aspx?i=ne30583> accessed 5 May 2015. ↑
  4. Ibid ↑
  5. Ibid ↑
  6. Jameel v Dow Jones [2005] QB 946 ↑
  7. Bailii.org, ‘Tamiz V Google Inc [2013] EWCA Civ 68 (14 February 2013)’ (2015) <http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html> accessed 5 May 2015 ↑
  8. Clift v Clarke [2011] EWHC 1164 (QB) at [32] ↑
  9. Smith v ADVFN Plc [2008] EWHC 1797 (QB) at [13]-[17] ↑
  10. Ibid ↑
  11. Bunt v Tilley [2007] 1 WLR 1243 ↑
  12. Bailii.org, ‘Tamiz V Google Inc [2013] EWCA Civ 68 (14 February 2013)’ (2015) <http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html> accessed 5 May 2015 ↑
  13. Ibid ↑
  14. Ibid ↑
  15. Linklaters.com, ‘Linklaters – EU – How Robust Is The Hosting Defence?’ (2010) <http://www.linklaters.com/Insights/Publication1403Newsletter/20100705/Pages/hostingdefence.aspx> accessed 5 May 2015. ↑
  16. Linklaters.com, ‘Linklaters – EU – How Robust Is The Hosting Defence?’ (2010) <http://www.linklaters.com/Insights/Publication1403Newsletter/20100705/Pages/hostingdefence.aspx> accessed 5 May 2015. ↑
  17. Ibid ↑
  18. Bunt v Tilley [2007] 1 WLR 1243 ↑
  19. Bailii.org, ‘Tamiz V Google Inc [2013] EWCA Civ 68 (14 February 2013)’ (2015) <http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html> accessed 5 May 2015 ↑
  20. Ibid ↑

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