Google not a 'publisher' of Blogger postings, High Court rules

Mr Justice Eady said that even if Google was a publisher of the material, it would not be liable for the comments under UK law. The judge was ruling in a case brought by a former Conservative council elections candidate Payam Tamiz who had claimed that Google was liable for allegedly defamatory comments posted about him by users of its 'Blogger' service.

"The fact that an entity in Google Inc's position may have been notified of a complaint does not immediately convert its status or role into that of a publisher," Mr Justice Eady said in his ruling.

"It is not easy to see that its role, if confined to that of a provider or facilitator beforehand, should be automatically expanded thereafter into that of a person who authorises or acquiesces in publication," he said. "It claims to remain as neutral in that process after notification as it was before. It takes no position on the appropriateness of publication one way or the other. It may be true that it has the technical capability of taking down (or, in a real sense, censoring) communications which have been launched by bloggers or commentators on its platform. Yet that is not by any means the same as saying that it has become an author or authoriser of publication."

"It seems to me to be a significant factor in the evidence before me that Google Inc is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material," the judge ruled. "Whether it has been notified of a complainant's objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one ... In striving to achieve consistency in the court's decision-making, I would rule that Google Inc is not liable at common law as a publisher."

To be considered libellous under common law in the UK comments must be published, communicated to someone other than the person being defamed and not be justified by a range of defences, including that the comments are true or were expressed as an opinion.

In the UK laws on defamation are also written into legislation. Under the Defamation Act a person can claim a defence against allegations of defamation if they can show that they were neither the author, editor or publisher of the comments, "took reasonable care in relation to its publication" and "did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement". The Act defines 'publisher' as meaning "a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business".

Mr Justice Eady said that even if his assessment of Google not being a publisher under common law was wrong, he nevertheless considered that it was not a publisher under the terms of the Act. The legislation states that a person is not a publisher if he is only involved as "the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control". This would provide a defence to Google.

In any case Mr Justice Eady said that Google's complaint handling process was not "outside the bounds of a reasonable response". Tamiz had notified Google of a series of comments he considered to be defamatory which had been posted as comments by anonymous users of a blog on Blogger. Tamiz sent the complaints in June and July last year. The comments included allegations that Tamiz was a "known drug dealer" and had stolen from a former employer. The judge accepted Google's arguments that its response to the notifications was reasonable. The company had not immediately deleted the blog but had sent notice of Tamiz's complaint onto the blog owner before the blog was eventually taken down on 14 August last year.

"If there were any need for Google Inc to rely on [the Defamation Act provisions], I believe it would provide a defence," Mr Justice Eady said.

The judge also said that, if required, Google would also have not been found to be liable for the comments because Tamiz had failed to show that Google knew the comments were unlawful.

"It may be thought by Mr Tamiz to be implicit in his complaints that he was denying, outright, any allegation of theft or drug dealing, but it cannot be right that any provider is required, in the light of the strict terms of [the UK's E-Commerce Regulations], to take all such protestations at face value. Clearly more is required for a provider to acquire a sufficient state of knowledge to be deprived of the statutory protection," Mr Justice Eady said.

"I would conclude, therefore, that if I am incorrect, or unduly precipitate, in reaching my earlier conclusion that Google Inc should not be regarded as a publisher of the offending words at all, in accordance with common law principles, I would hold in any event that it would be exempted from liability in accordance with [the provisions set out in the Regulations]," he said.

Under the E-Commerce Regulations "secondary publishers" can be found responsible for defamatory comments posted using their service. However, they can avoid liability for defamation under the terms of the Regulations if they act as a mere conduit or caches or hosts of the material.

In order to avoid any liability for unlawful material, the service provider must, upon gaining 'actual knowledge' that the initial source has been removed or access to it has been disabled, act 'expeditiously' to ensure that the information is deleted or access to it disabled.