Tamiz v Google Inc ([2013] EWCA Civ 68)
Mr Tamiz sued Google Inc and Google UK Ltd over 8 comments which had been posted on blog called 'London Muslim' which was hosted on Blogger.com, operated by Google Inc. He had notified Google of his objections to the comments. Google had contacted the author of the Blog who voluntarily deleted the comments. It took just over 5 weeks for the comments to be removed, and he decided to sue in relation the period after Google Inc had received his objection, but before they were taken down. (He subsequently settled his claim against Google UK Ltd, having been informed that it had no responsibility for Blogger.com.)
The first instance decisions
He had to obtain permission from the Court to serve his claim on Google Inc in California. A High Court Master had given Mr Tamiz permission, and Google Inc then tried to get that set aside, in an application to Mr Justice Eady. Eady J found for Google Inc on 3 grounds:
1. Google Inc has a "passive" role in relation to Blogger.com and hence was not a "publisher" for the purposes of the law of defamation, either before or after receiving notification of a complaint;
2. Google Inc would have a cast-iron defence to the claim e.g. under s.1 of the Defamation Act 1996
3. Even if the above was wrong, the 5 week period over which Mr Tamiz was suing (i.e. the time the comments had remained on the blog after Google Inc received his initial objection) was so short that any potential liability that arose was too trivial to justify a High Court libel action.
Mr Tamiz then appealed to the Court of Appeal.
The Court of Appeal Judgment
On the specific facts of the case, Mr Tamiz lost on ground 3. – 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".
However, the significant aspect of the Court of Appeal's decision (for people other than the unfortunate Mr Tamiz) was that it disagreed with Eady J on grounds 1. and 2.
The Court ruled that Google Inc as the operator of the blogging platform Blogger.com was arguably a publisher once it had been put on notice of acomplaint of libel. It also decided that Google Inc did not have a 100% cast-iron defence under s.1 of the Defamation Act 1996, as Eady J had held.
The Court said:
"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".
Although Mr Tamiz himself lost, the decision puts power in the hands of would-be claimants hoping to remove offensive material from a site such as Blogger. The pressure is now on ISPs to react fast to notification, to be safe from being saddled with liability as a publisher of users' defamatory postings.
It should be noted that Google's role as a search engine was not affected by the Tamiz decision – in a July 2009 ruling (Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc [2009] EWHC 1765 (QB)) Eady J had found that Google was not a publisher of defamatory material in search results. The Court of Appeal in Tamiz did not disturb this ruling.
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