Google not shown to have had actual knowledge of defamatory comments, High Court rules

The Court said that Andrea Davison had failed to establish that Google knew that comments posted about her on Blogger.com, a blogging platform which Google owns, were unlawful.

Davison had claimed that Google was liable for defamation because it had not deleted comments that alleged she was involved in fraudulent activity. Davison notified Google about the comments but the company did not immediately delete them after the author of the comments told it that the allegations were true. Google did voluntarily delete the comments after becoming aware that it was the subject of Davison's defamation claim.

The Court said that although it was "arguable" that Google was a publisher of the defamatory comments, Davison had not been able to show that it definitely knew the material was unlawful.

"There is no realistic prospect of [Davison] establishing that the notification of her complaint fixed [Google] with actual knowledge of unlawful activity or information, or made it aware of facts or circumstances from which it would have been apparent to it that the activity or information was unlawful," Judge Parkes QC said in his ruling. "[Google] was faced with conflicting claims from [Davison] and the [comments author] between which it was in no position to adjudicate."

"That is of course not to say that a different conclusion could not be reached on different facts, such as where ... a complaint was sufficiently precise and well substantiated, and where there was no attempt by the author of the defamatory material to defend what had been written," the ruling said. "But on the present facts, which are not in any material respect in dispute, in my judgment there is no good arguable case ... that [Google] is liable in damages or for any other pecuniary remedy in respect of the publication of the words complained of on Blogger.com, whether before or after notification by [Davison] of her complaint."

Under the E-Commerce Regulations service providers can be found liable for unlawful material they host. A web host can avoid liability if it did not have "actual knowledge of unlawful activity or information" and if it "acts expeditiously to remove or to disable access to the information" if it obtains that knowledge. The web host can also avoid liability if the recipient of the service was not acting under the authority or the control of the service provider.

Davison had claimed that the "very outlandishness" of the comments posted about her would have given Google the knowledge that the claims were libellous, but the judge rejected that argument. Allowing Davison to pursue a case for damages against Google would not have been justified because she had failed to establish that she was the victim of a "real and substantial" wrongdoing, the judge said.

"I would hold that the continuance of the proceedings against [Google] on the basis of publication to five individuals who were not known to her, nor she to them, in circumstances in which no worthwhile vindication could possibly be obtained, would be disproportionate and an abuse of the process," the judge said.

"It seems to me ... that my approach should be no different in deciding whether the claimant has shown that there is a real and substantial tort. I conclude that she has not done so ... [Davison] is not thereby denied access to justice, because she has remedies against ... the alleged authors of the material complained of, if she can establish the necessary elements of a claim against them. Whether or not they are persons of substance, they offer her a potential means of obtaining vindication," he said.

The judge had assessed Davison's rights to the protection of her reputation against the right to freedom of expression, both of which are guaranteed under the European Convention on Human Rights.