How long does it take to become liable for third parties' defamatory comments?

Merpel has still to recover
from Valentine's Day chocolates

According to a recent ruling of the Court of Appeal of England and Wales, five weeks might be enough for liability to arise.

A couple of weeks ago, when the world was busy celebrating Valentine's Day [Merpel remembers it quite well as that day she got far too many flowers and ate far too many heart-shaped chocolates], the Court of Appeal of England and Wales was busy deciding a case of libel, this being Payam Tamiz v Google. 

Although this case was not about something which can be considered strictly IP-related, Merpel thought that the IPKat should consider it, basically for two reasons. Firstly, because liability for defamation/libel is something which is of daily concern to Merpel. Secondly, because the case shed some further light on the not-so-romantic topic of intermediaries' secondary liability.

Lord Justice Richards (with whom Lord Justice Sullivan and the Master of the Rolls agreed) delivered the judgment, which concerned Google's liability for comments posted on the very blogging platform which hosts also the IPKat, ie Blogger. The comments concerned certain allegations that the appellant had resigned as a Conservative Party candidate for local elections in Thanet after it had been discovered that his Facebook site referred to women as "sl***s". 

The blog at stake in this case was London Muslim. In 2011 this hosted eight comments which the appellant, Mr Taniz, deemed defamatory to him. In July that year he filed a complaint with Google, which forwarded the email to the blogger the following month. The blogger eventually removed all the comments about which the complaint had been made.

However, Mr Tamiz was not 100% satisfied, and thus decided to bring a claim in libel against Google in respect of the publication of the allegedly defamatory comments during the period prior to their removal.

Following dismissal of Mr Tamiz's claims by Mr Justice Eady (who held that that five of the comments could be characterised as "mere vulgar abuse" to which no sensible person would attach much weight, while three of them were found arguably defamatory) what was at stake before the Court of Appeal was whether: 

(1) there was an arguable case that Google was a publisher of the comments,
(2) if it was a publisher, it would have an unassailable defence under section 1 of the Defamation Act 1996, 

(3) any potential liability was so trivial as not to justify the maintenance of the proceedings, and 

(4) Google would have a defence, if otherwise necessary, under regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002.

After recalling that blogger.com operates a 'Report Abuse' feature, which includes "Defamation/Libel/Slander" and that, in compliance with what is the law in the US, defamatory material will only be taken down  if it has been found to be libellous by a court, Lord Justice Richards noticed that in this case Google had gone slightly further than the stated policy, in that the email by which it passed on to the blogger the details of the appellant's complaint contained an actual request to "please remove the allegedly defamatory content in your blog within three (3) days of today's date". 

Whether Google was a publisher of the comments

This said, the judge considered whether Google could be considered as a publisher of the comments. Contrary to the conclusion of the High Court, the Court of Appeal held that Google's role in respect of Blogger blogs could not be regarded as purely passive. This is because:

After this ruling intermediaries
might have less time to rest ... 

"By the Blogger service Google Inc provides a platform for blogs, together with design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its own choice and it can readily remove or block access to any blog that does not comply with those terms ... As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them, but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.

By the provision of that service Google Inc plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge of, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article. Nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed."

The judge was also doubtful about the argument that Google's role is that of a secondary publisher, facilitating publication in a manner analogous to a distributor.

However, in relation to the position after notification of the complaint, the judge held that

"if Google Inc allows defamatory material to remain on a Blogger blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material ... The period during which Google Inc might fall to be treated on that basis as a publisher of the defamatory comments would be a very short one, but it means that the claim cannot ... be dismissed on the ground that Google Inc was clearly not a publisher of the comments at all."

The defence under section 1 of the 1996 Act

Turning to considering whether Google had a defence under section 1 of the 1996 Act, the Court found that the relevant question was whether Google had taken reasonable care in relation to the continued publication of the comments, and whether it could be said that in the period after notification of the complaint Google did not know, and had no reason to believe, that what it did caused or contributed to the publication of a defamatory statement. According to Lord Justice Richards, 

... and be wide-awake 24/7 instead

"the very considerations that lead ... to conclude that Google Inc arguably became a publisher of the defamatory comments ... also tend towards the conclusion that following notification it knew or had reason to believe that what it did caused or contributed to the continued publication of the comments."

The judge was not satisfied that, if Google was found to be a publisher of the defamatory comments, section 1 of the 1996 Act would provide it with an unassailable defence. For that reason it was necessary to move to the issue whether any potential liability on the part of Google was sufficient to justify the maintenance of the proceedings against it. 

"Real and substantial tort"

The Court of Appeal agreed with Mr Justice Eady that the application in the present case to set aside permission to serve out of the jurisdiction was to be allowed because any damage to the appellant's reputation arising out of continued publication of the comments during the period comprised between the notification of the complaint and the removal of the comments would have been trivial; and in those circumstances the High Court was right to consider that "the game would not be worth the candle". 

Thus, despite the fact that the Court of Appeal reached certain conclusions favourable to the appellant, the appeal failed and it was deemed it unnecessary to consider whether Google would have a defence under regulation 19 of the 2002 Regulations.

The decision in Tamiz v Google provides some guidelines as to the temporal conditions which might give rise to liability of intermediaries for third parties' wrongdoings. As summarised by The Guardian, from now on "Google may have to act quicker to remove potentially libellous posts from its Blogger platform ... [as] a gap of five weeks between a complaint being made and the removal of allegedly defamatory comments on a blogpost could leave it open to a libel action".