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||Neutral Citation Number:  EWHC 449 (QB)
||Case No: HQ11D03178
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||2 March 2012
B e f o r e :
THE HONOURABLE MR JUSTICE EADY
The Claimant appeared in person
Catrin Evans (instructed by Reynolds Porter Chamberlain LLP) for the First Defendant
The Second Defendant was not represented
Hearing date: 16 February 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Eady :
- In this libel action Mr Payam Tamiz has sued both Google Inc and Google UK Ltd (as, respectively, First and Second Defendants) in relation to eight comments which are said to be defamatory of him and which were posted on a blog bearing the name "London Muslim" at various times between 28 and 30 April 2011. He does not sue in relation to the original blog or article to which these comments related, nor in respect of some 37 other comments contained in the same thread. Nevertheless, it may be that such matters would need to be taken into account as part of the context for the words sued upon.
- Google Inc is a corporation registered in Delaware, in the USA, and its principal place of business is in California. On 22 September 2011 Mr Tamiz was granted permission by Master Eyre to serve the claim form on Google Inc in California. It is now sought by Ms Evans on its behalf to have that order (which was made, in the usual way, on a without notice application) set aside in accordance with the provisions of CPR Part 11(1) and (6).
- Ms Evans also asks that the court should declare that there is no jurisdiction to try the claim; alternatively, should the court hold that there is such jurisdiction, that it should not be exercised.
- Google Inc provides a range of Internet services including via Blogger.com (also based in and managed from the USA). This is described as a "platform" which allows any Internet user, in any part of the world, to create an independent blog free of charge. If someone uses that service, without having his/her own web address ("URL"), then Blogger.com allows users to host their blogs on Blogger.com URLs. This was the case with the blog on which the comments complained of in these proceedings were posted. Google UK Ltd simply carries on a sales support and marketing business within this jurisdiction. It does not operate or control Blogger.com and has therefore been joined in these proceedings inappropriately. This was explained in a defence served on 8 December 2011. The English company takes no part in the applications before me.
- It seems that Mr Tamiz was in the news for a brief period in or about April 2011 in relation to allegations that he had resigned as a Conservative Party candidate for local elections in Thanet after making inappropriate remarks. Indeed, this was the subject of the original post or article on the London Muslim blog, to which the eight comments sued upon were supposed to be in response. It had been headed "Tory Muslim candidate Payam Tamiz resigns after calling girls 'sluts'". As I have already made clear, Mr Tamiz has brought no proceedings against either the original blogger or the individual commentators, who would undoubtedly be responsible in law for any defamatory words they had posted. This may not be altogether surprising, since most of these communications are made anonymously and it is not easy to track down who was responsible. In the absence of any such problems, however, Mr Tamiz has sued in respect of an article appearing (originally on 27 April 2011) in the Evening Standard by Joe Murphy, described as Political Editor, and dealing with the allegation that he had resigned after it had been discovered that his Facebook site referred to women as "sluts".
The words complained of
- I shall set out the initial blog or article appearing on the London Muslim website on 27 April simply because it is relevant background context for what followed. The words appeared under a photograph of Mr Tamiz:
"Payam Tamiz a Tory Muslim council candidate with a 5 o'clock shadow has resigned from the party after calling Thanet girls 'sluts'.
Tamiz who on his Twitter page describes himself as an 'ambitious British Muslim' is bizarrely studying law so one would have though (sic) this Tory prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks."
- Thereafter a range of comments appears and I shall set out only those complained of, which have been conveniently labelled A to H for ease of reference.
I know Mr Tamiz very well and am surprised that it has taken this long for all this to come out, Payam is a known drug dealer in thanet and has been taken to court for theft from his employers tescos in Ramsgate. His whole family are criminals his mother Mrs Sohela Tamiz has several convictions for theft and shoplifting and got sentenced at maidstone crown court
28 April 2011 14:53"
Can't deny what he said is true but isn't this the same Payam Tamiz that use to take girls back to his 'houseparties' practically every weekend with his friends and sleep with them? Hypocritical much?
30 April 2011 12:28"
The blokes a class A prat not only for the comments he recently made. He may have a few half wits as a following but I speak for the people that have known payam for several years and have been on the reciving (sic) end of his abuse a disrespect and his not such a nice person. I'm sure we'll be hearing alot more from his past which will paint a true picture of him.
28 April 2011 23:04"
So Mr Whacker is a voilent (sic) racist, certainly doesn't like white people does he?!
If you'd ever been to Margate you would find the majority are white women, even those from the Eastern bloc. To tar all Margate women with the word slut is very derogatory, how does he know? Does he make a habit of chasing women around? Or as someone implys above, does he sell drugs to them?
28 April 23:51"
(Only the last two questions are the subject of complaint.)
I've only read that Payams claiming to be 21, I'm sure he told me that his older than that. Fake asylum claim was it. The good old home office and all us wankers that pay tax for waste of spaces like him.
29 April 2011 01:09"
Before Payam starts to call women sluts it might be an idea for him to look closer to home, how may (sic) brothers and sisters has he got, all with different fathers. I thought Muslim men were the one who were meant to have more than one wife, not the women with more than one husband. Is there not a 30 year gap between the ages of his younger to older brother and sister. Look closer to home pal.
29 April 2011 09:40"
The only reason his callig (sic) girls slags is cos he aint getting none himself. And he blames a relationship breakup for his comments, but the only problem with that being is that Payams never had a girlfriend since I known him and thats been a couple of years, that makes him single at the time.
Poor little Payam, has you giving it the large one to your friends blown up in your face and back fired.
It couldn't have happeneded (sic) to a better person, his a little snake and he knows it. I'd put my money on him still being a virgin, not being funny but you only got to look at his picture to work that out.
29 April 2011 21:26"
And his brothers girl friend is an escort girl, Claudine Lear, look closer to home pal.
29 April 2011 18:43"
A summary of the case advanced by Google Inc
- In general terms, the stance of Google Inc is that it has no control over any of this content. It is thus not a publisher of the material but merely a neutral service provider. In due course, following the Claimant's complaint, Google Inc after a considerable delay passed it on to the blogger in question, who remains unidentified so far as the Claimant is concerned, and he took all the material down, along with the original article, on a voluntary basis. There is no evidence that it has been re-posted at any time since.
- Google Inc makes the point that it has no way of knowing whether the comments complained of were true or not (or subject to some other defence in law). It argues that it cannot reasonably be expected to investigate and determine the truth or falsity of allegations made by bloggers.
- One needs to be wary of analogies when considering modern technology, but it may perhaps be said that the position is, according to Google Inc, rather as though it owned a wall on which various people had chosen to inscribe graffiti. It does not regard itself as being more responsible for the content of these graffiti than would the owner of such a wall.
- Against this background, Ms Evans has developed the following arguments. First, she submits that the particulars of claim do not go so far as asserting that the words complained of have been accessed or downloaded by a substantial number of readers in this jurisdiction. On that ground alone, she argues that the Claimant has not even pleaded that a "real and substantial tort" has been committed in this jurisdiction: see Jameel (Yousef) v Dow Jones & Co Inc  QB 946. He sought to deal with this by introducing a skeleton argument and a number of witness statements shortly before the hearing. He being a litigant in person, no objection was taken to this course. Ms Evans also argues, however, that in any event the content of the words complained of does not reach what she describes as the necessary "threshold of seriousness required to establish a cause of action in libel".
- Secondly, Ms Evans argues that Google Inc is not a publisher for the purposes of the English law of defamation.
- Thirdly, even if Google Inc is to be regarded as a publisher of the words complained of, Ms Evans argues that it would be protected against liability by Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002. These implement in the law of the United Kingdom the provisions of Article 14 of Directive 2000/31/EC of the European Parliament and of the Council dated 8 June 2000 relating to electronic commerce.
The complaints made to Google Inc
- It is appropriate to address these submissions both by reference to the period before Google Inc received any notification of Mr Tamiz' complaint and to the period afterwards, in order to see whether it makes any difference as a matter of law. For that reason, I should go into a little further detail as to the history of the communications between the parties, as described in the evidence of Mr Jaron Lewis, who is Ms Evans' instructing solicitor.
- According to Mr Tamiz, he first notified his complaint on 28 or 29 April 2011 (i.e. as the postings were taking place) when he used the "Report Abuse" function on the relevant web page. What became of this remains unclear.
- A letter of claim was sent on 29 June to Google UK Ltd, which was received on 5 July. This complained of the original article, as being defamatory and untrue, although it was not subsequently sued upon in these proceedings. Complaint was also made of what is now described as Comment A. This letter was passed by Google UK Ltd to Google Inc, which responded to Mr Tamiz by email on 8 July. Clarification was sought as to whether the comment in question was said to be untrue, since his letter had not apparently made that clear. It was at this stage that it was pointed out to Mr Tamiz that the blogger service had nothing to do with Google UK Ltd.
- Mr Tamiz responded promptly on 8 July to the effect that Comment A was indeed "false and defamatory". At this stage, he introduced a complaint about Comment B as well.
- The "Blogger Team" within Google Inc sent a further email to Mr Tamiz on 19 July, seeking his permission to forward his complaint to the author of the blog page. He was told, however, that Google Inc itself would not be removing the post complained of. Mr Tamiz responded by giving the necessary permission on 22 July.
- In that email of 22 July, Mr Tamiz complained about a further five comments on the blog, now identified as Comments C, D, E, F and G. He confirmed that these were alleged to be defamatory and it seemed to be implicit also that he was characterising them as untrue.
- After considerable delay, Google Inc forwarded the letter of claim to the blogger on 11 August of last year and informed Mr Tamiz that it had done so. As I have said, on 14 August the article and all the comments were removed by the blogger himself. Mr Tamiz was accordingly notified by Google Inc the following day. It was on or about 10 August that he sent the claim form in these proceedings, together with the original particulars of claim, to the court. It was issued by the court on 16 August.
- After the Master gave permission to serve the claim form in California, on 22 September, the particulars of claim incorporated an additional complaint relating to Comment H and were served on 2 November.
The reasons for seeking permission to serve out of the jurisdiction
- When Mr Tamiz applied for permission to serve out, he seems to have been relying on PD6B of CPR Pt 6 with specific reference to sub-paragraph 3.1(3) and/or 3.1(9). It would appear that the first ground was based on a misapprehension, since the provision specifies circumstances in which:
"(3) A claim is made against a person ('the defendant') on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and
(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim."
Here, the only relevant "defendant" on whom the claim form had been served within this jurisdiction was Google UK Ltd, in respect of which there is and was no "real issue which it is reasonable for the court to try".
- That leaves sub-paragraph 3.1(9) to be considered as a basis for service out. This presupposes a claim in tort "where (a) damage was sustained within the jurisdiction; or (b) the damage sustained resulted from an act committed within the jurisdiction". Here, it is to be assumed that Mr Tamiz contends that damage has been sustained to his reputation within the jurisdiction: that is what any libel action is supposed to be concerned with. It is true that under English common law damage is presumed, but publication has first to be proved. It is clear that publication cannot be inferred solely by reason of the fact that defamatory allegations have been accessible on the Internet: see Jameel (Yousef), cited above, and Al Amoudi v Brisard  1 WLR 113. Thus, the burden lies upon the relevant claimant to establish at the outset a "real and substantial" publication with this jurisdiction.
Is there any evidence of a "real and substantial tort" within this jurisdiction?
- Ms Evans' first point was that Mr Tamiz has so far not even pleaded any instances of substantive publication. That is an omission he sought to correct, at the last minute before the hearing, by adducing witness statements from various individuals who had seen some of the material complained of. He further claimed that, given time, he would be able to produce similar evidence from others. Nowadays, of course, it will not generally suffice for a claimant merely to prove that the relevant material has been accessed, read or downloaded by some identified person(s). It is necessary to go further and show some ground for believing that it has been given a measure of credence and thus been liable to affect the claimant's reputation in the eyes of such person(s). It is not enough to show, for example, that the words have been read by someone in the claimant's "camp", such as a solicitor, friend, relative or colleague who has attached no weight to it at all, as happened in Jameel (Yousef). Mr Tamiz, however, suggests that not all of the deponents or potential deponents he has introduced are friends or acquaintances of his and that some may well have attached a degree of credence to what was alleged. In particular, someone at Conservative Central Office had asked for some of the allegations to be investigated or refuted.
- Ms Evans argues that anyone accessing the material complained of in these proceedings, and quoted above, would recognise it as being typical of the mindless rubbish to be found all over the Internet. People realise, she submits, that often contributors to threads of this kind are merely shooting from the hip, and without giving the matter any forethought or mature reflection: no weight should be attached to what they are saying, any more than to casual bar room gossip. She referred in this context to the discussion in Smith v ADVFN Plc  EWHC 1797 (QB) at - and to Clift v Clarke  EWHC 1164 (QB) at  and .
- It seems to me necessary to consider carefully each of the eight comments individually. They cannot all necessarily be readily dismissed as "mere vulgar abuse" or as being obviously not intended to be taken seriously. For example, Comment A contains two clear allegations (i) of being a drug dealer and (ii) of having stolen from a former employer. What is more, the author suggests that the information is widely known and that there has even been a conviction for theft. Those were apparently the matters on which the Conservative Party, not surprisingly, required reassurance.
- Less significant is Comment B, which alleges substantively only that Mr Tamiz used to sleep with girls at "houseparties". Nowadays, I do not suppose that would be taken to be defamatory by "right-thinking members of society", but it is coupled with an accusation of hypocrisy and I do not feel able at this stage to conclude that this is incapable of founding a cause of action.
- As to Comments C, E, F, G and H, I would agree with Ms Evans that they can each be characterised as effectively "mere vulgar abuse". No sensible person would attach much, if any, weight to them. They do not seem to represent examples of a real and substantial tort such as to suggest any need for the vindication of Mr Tamiz' reputation.
- On the other hand, I am not so persuaded in relation to Comment D, which rehearses (albeit with a question mark attached) the earlier charge of being a drug dealer. As with Comment A, I believe that I cannot simply dismiss this complaint out of hand.
- An allegation of criminal offending, whether of theft from an employer or of dealing in drugs, cannot be discounted on the basis of a mere "numbers game". Such allegations are apt to cause damage to reputation, in some circumstances, even in the case of restricted publication. If this were an application to strike out, I would accordingly leave in Comments A and D. I would also leave Comment B, but I would remove the other five comments.
- It is submitted that whatever defamatory sting is contained in those comments is, at least, significantly diluted by the surrounding context of the thread. They too would therefore be likely to be dismissed as part of the generally abusive banter. That seems to me the kind of argument that could be developed at trial, rather than on an application analogous to a strike out. The fact that some contributors to a thread are talking nonsense does not in itself mean that all the others should be similarly dismissed
Is Google Inc a "publisher" according to common law principles?
- Ms Evans next raised the argument that Google Inc should not be regarded, as a matter of English law, as a publisher of the words complained of. It is probably fair to say that none of the decisions so far relating to the role of Internet service providers (ISPs) has definitively established, in general terms, exactly how such entities fit into the traditional framework of common law principles. In the recent decision of His Honour Judge Parkes QC in Davison Habeeb  EWHC 3031 (QB), he recognised that "
there is in my judgment an arguable case that [Google Inc] is the publisher of the material complained of, and that at least following notification it is liable for publication of that material".
- The position may well be fact-sensitive. Liability may turn upon the extent to which the relevant ISP entity has knowledge of the words complained of, and of their illegality or potential illegality, and/or on the extent to which it has control over publication. For example, in Godfrey v Demon Internet Ltd  QB 201, it was held that an ISP which continued to store a defamatory posting on its news server, after having been asked to remove it by the claimant, was responsible for the publications which occurred when that posting was later accessed. (That case was decided some 18 months before the Human Rights Act came into effect.) On the other hand, in Bunt v Tilley  1 WLR 1243, a claim was struck out against three separate ISPs on the basis that "
persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers".
- In a rather different context, where Google Inc had been sued in respect of its role as operator of the widely used search engine, it was held not to be responsible for publication of defamatory "snippets", derived from automated searches by "web-crawling robots", even though published on the "results" page in response to Google searches. Because the process is automated, and searches are framed by those making the enquiry without any human input from Google Inc, it was held that the mental element traditionally involved in responsibility for publication at common law was absent: see Metropolitan International Schools Ltd v Designtechnica Corpn  1 WLR 1743.
- No allegation is made in this case of liability on the part of Google Inc in respect of any of the "comments" complained of prior to notification by Mr Tamiz of his objections. It is only necessary, therefore, to assess potential legal liability from the point of notification (whenever that occurred). It is relevant to have in mind, although it cannot be determinative as a matter of law, that Google Inc promulgates and attempts to follow a well known policy of its own; that is to say, it will not remove offending material because it is not in a position to investigate or come to a decision upon any legal challenge. As I understand it, this is partly a question of principle and partly a matter of sheer practicality. Google Inc regards itself as providing a platform for the free exchange of information and ideas and would not wish to be seen as a censor. In any event, the blogs on Blogger.com contain, I am told, more than half a trillion words and 250,000 new words are added every minute. In these circumstances, it is virtually impossible for the corporation to exercise editorial control over content. The position was summarised by Ms Evans' instructing solicitor in paragraph 9 of his witness statement:
"[Blogger.com] does not create, select, solicit, vet or approve that content, which is published and controlled by the blog owners. Blogger.com merely provides the tools for users to operate and maintain their sites."
- Ms Evans invites me to adopt a similar approach to that in the Designtechnica case and to conclude that it would be "unrealistic" to attribute responsibility for publication of material on any particular blog to Google Inc, whether before or after notification of a complaint.
- Where the law is uncertain, in the face of rapidly developing technology, it is important that judges should strive to achieve consistency in their decisions and that proper regard should be paid, in doing so, to the values enshrined in the European Convention on Human Rights and Fundamental Freedoms. In particular, one should guard against imposing legal liability in restraint of Article 10 where it is not necessary or proportionate so to do. In this context, Ms Evans argues that it is unnecessary to impose liability on ISPs when a complainant, in order to have access to justice, may alternatively have resort to those who undoubtedly are responsible for publishing the offending words. This would include primarily the authors and possibly also the persons who have control of the blog in question. As I have indicated already, this is an approach which may be regarded as more theoretical than real because of problems of anonymity, but it is certainly not an argument that can be simply ignored. In Bunt v Tilley, cited above, the claims against AOL UK Ltd, Tiscali UK Ltd and British Telecommunications Plc were all struck out. Against that background, I concluded the judgment with these words:
"The Claimant is not deprived of access to justice. His remedies lie against the First to Third Defendants (if he can establish the necessary ingredients in respect of each). They may not be persons of substance, such as to make it worthwhile pursuing them. Even if that is right, it is clearly not a sufficient reason for bringing in the present applicants
The important question, in the present context, would appear to be, not whether Mr Tamiz can identify the authors or bloggers in question, still less whether they are worth powder and shot, but rather whether he is in a position to establish against Google Inc the necessary attributes of a publisher in accordance with common law principles.
- Google Inc accepts the responsibility of notifying (albeit not always with great promptitude) the blogger(s) in question. It does not, however, accept that it should investigate every complaint received, whether by way of establishing the facts or obtaining advice on the relevant domestic law or laws that may be applicable. 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. 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. 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 is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.
- 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, 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. The situation would thus be closely analogous to that described in Bunt v Tilley and thus, 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. It would accordingly have no need to rely upon a defence (statutory or otherwise).
The alternative arguments based on s.1 of the Defamation Act 1996
- Ms Evans invites me also to consider the terms of s.1 of the Defamation Act 1996 and its possible impact on circumstances of this kind. The provisions are as follows:
"Responsibility for publication
(1) In defamation proceedings a person has a defence if he shows that
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
(2) For this purpose 'author', 'editor' and 'publisher' have the following meanings, which are further explained in subsection (3)
'author' means the originator of the statement, but does not include a person who did not intend that his statement be published at all;
'editor' means a person a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and
'publisher' means 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.
(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved
(a) in printing, producing, distributing or selling printed material containing the statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the statement;
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the make of the statement;
(e) 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.
In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.
(4) Employees or agents of an author, editor or publisher are in the same position as the employer or principal to the extent that they are responsible for the content of the statement or the decision to publish it.
(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to
(a) the extent of his responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the author, editor or publisher.
(6) This section does not apply to any cause of action which arose before the section came into force."
- Since the object of these provisions is inter alia to narrow the scope of a publisher's potential liability for defamation, they would only become relevant on the hypothesis that I am wrong in my primary conclusion, in accordance with the common law principles, that Google Inc should not be held responsible as a publisher of the eight comments complained of. Ms Evans argues, on that assumption, that Google Inc would escape any such liability (including after notification) by reason of these provisions.
- Whereas Google Inc in the course of its business makes facilities available, including by way of a platform for bloggers who use Blogger.com, it cannot be said to fall within the definition of a "commercial publisher". That is because it does not itself issue material to the public, or a section of the public. The blogger behind the "London Muslim" blog and/or those persons who comment upon its contents may very well be regarded as "issuing material to the public" (albeit quite possibly not in the course of a business). But that is, Ms Evans submits, a quite different activity from merely making the platform available. More specifically, she argues that it would be unrealistic and misleading to regard her client as issuing material containing any of the eight comments in the course of such a business.
- Ms Evans also suggests that it is implicit in the statutory notion of "issuing material to the public" in the course of a business that there is a direct relationship, of a commercial or contractual nature, between the relevant "publisher" and its readers. I would not necessarily accept that in order to qualify as such a "publisher" it would be necessary to be remunerated directly by the reader. The London Evening Standard nowadays, for example, is distributed without charge to its readers. It nonetheless represents a commercial publishing activity, even though the proprietor looks to advertisers for its revenue stream and ultimately for any profit. I am not sure, however, that this undermines Ms Evans' argument overall, since the proprietor of the Evening Standard undoubtedly issues material to the public in the course of a business. There are obviously other publishers who operate in the same way. But that is not the case with Google Inc.
- It is relevant in the present context to consider the terms of s.1(3)(e), since it seems likely that Google Inc could be characterised as providing access to a communications system by means of which statements are transmitted by a person or persons over whom it has no effective control. That seems to me to be an accurate description of the service Google Inc provides. Ms Evans referred to a passage in Gatley on Libel and Slander (11th edn) at para 6.23, where the learned editors consider the position of a service provider who hosts a subscriber's web page in circumstances where there is a contract containing conditions about the content of the page, which might include restrictions on the inclusions of defamatory matter. They comment:
"However, if this were to be held to amount to 'effective control' over the originator of the material that would seriously reduce the protection afforded by s.1."
It seems to me to be likely that the draftsman had in mind, not so much the possibility of intervention and reliance on such a contractual term, but rather the situation where there was effective day-to-day control.
- Reference was also made to the decision of Morland J in Godfrey v Demon Internet Ltd, cited above, at pp205-207, where his Lordship was considering the application of these very provisions to the facts before him. He was there concerned with a defendant ISP which carried a newsgroup and stored postings within the hierarchy for about a fortnight, during which time the posting would be available to be read by the customers. An unknown person in the United States made a posting which was "squalid, obscene and defamatory of the plaintiff". It followed a path from its originating American ISP to the defendant's news-server in England. It was not disputed that it could have obliterated the posting from its news-server after receiving a request from Mr Godfrey. Having referred to the relevant passages of s.1 of the 1996 Act, Morland J concluded with these words:
"In my judgment the defendants were clearly not the publisher of the posting defamatory of the plaintiff within the meaning of section 1(2) and (3) and incontrovertibly can avail themselves of section 1(1)(a). However the difficulty facing the defendants is section 1(1)(b) and (c). After 17 January 1997, after receipt of the plaintiff's fax, the defendants knew of the defamatory posting but chose not to remove it from their Usenet news servers. In my judgment this places the defendants in an insuperable difficulty so that they cannot avail themselves of the defence provided by section 1."
- In this context, Ms Evans also adverted to what she considered a somewhat opaque passage in the judgment in the Designtechnica case at :
"There is no need to address the possible defence under section 1 of the 1996 Act in the light of my finding in the Third Defendant's favour on primary liability. If, however, it should correctly be considered as a 'publisher', contrary to my conclusion, it is difficult to see how it would then qualify under section 1(1)(a)."
I can understand her puzzlement. In this brief and passing comment, I was contemplating the somewhat counter-intuitive hypothesis that Google Inc should be considered as a "publisher", contrary to my primary finding, and this led to her confusion. I was obviously finding it difficult to envisage how it could on that hypothesis, in any meaningful sense, not be "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". I do not believe there is an inconsistency between my conclusion and that of Morland J in Godfrey. Unlike Morland J, I did not go on to consider s.1(1)(b) and (c). It was not relevant to do so in the context of a search engine. All I was suggesting, in the passage at , was that if Google Inc was to be regarded as a publisher of the search "snippets", it was difficult to see how it would not fall within the definition of a commercial publisher. It would, on that hypothesis, not qualify for exemption under s.1(1)(a) and would be counted a "publisher".
- For the sake of completeness, I will also address Ms Evans' arguments on s.1(1)(b) and (c). First, she submits that Google Inc did take "reasonable care" in relation to Mr Tamiz' complaint when they passed it on to the blogger in question. She argues that it was a proportionate response in view of the huge number of posts on the Blogger.com pages and the unreality of expecting Google Inc to investigate the truth of the offending allegations and the availability, or otherwise, of other defences under English law. One could certainly say that the response was somewhat dilatory, but I would not consider it, in all the circumstances of this case, to be outside the bounds of a reasonable response.
- Section 1(1)(c) contemplates a third element in the statutory defence; namely, that a defendant must demonstrate that "he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement". The natural interpretation of the phrase "a defamatory statement", to an English lawyer, is that the statement in question is prima facie defamatory. That is to say, it is not concerned with the assessment of the merits of any available defence, but only with the question of whether the words are defamatory on their face (or, perhaps, by way of innuendo if a proper explanation has been provided of the extraneous facts which would convey a defamatory meaning to persons with the relevant knowledge).
- In the case of Mr Tamiz, of course, there is no suggestion that any relevant knowledge on the part of Google Inc predated his notification. As a matter of fact, different complaints were raised on different dates. He complained in relation to Comment A on 29 June 2011, although this was not received by Google Inc until about 5 July. He drew Comment B to its attention on or about 8 July and Comments C to G on or about 22 July. As I have already indicated, I would only consider that Comments A, B and D are arguably defamatory. Each of these had obviously a different date of notification. In each case, however, once the complaint was notified, I think that Google Inc would have had reason to believe that the relevant comment was defamatory. That is because allegations of theft, drug dealing and hypocrisy are on their face defamatory. That is far from saying, on the other hand, that Google Inc would have known, or had reason to believe, that it had done anything to cause or contribute to the publication of any of these statements.
- Furthermore, Ms Evans argues that, in each case, the period between notification and the removal of the offending blog (on 14 August 2011) was so short as to give rise to potential liability on the part of Google Inc only for a very limited period such that the court should regard its potential liability, if any, as being so trivial as not to justify the maintenance of these proceedings. In other words, to adopt the language of the Court of Appeal in Jameel (Yousef), "the game would not be worth the candle". I believe she must be right about that.
- If there were any need for Google Inc to rely on s.1 of the 1996 Act, I believe it would provide a defence.
The alternative argument based on Reg 19 of the 2002 Regulations
- I turn now to Ms Evans' third line of argument. Even assuming that there were a reasonable prospect of establishing that Google Inc should be regarded as a publisher in accordance with common law, it is submitted that this claim would be defeated in any event by reason of Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 ("the Regulations"). The recent decision of Davison v Habeeb provides an example where that statutory defence succeeded and I am invited to take a similar approach.
- The wording of the Regulation is as follows:
"Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where
(a) the service provider
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and
(b) the recipient of the service was not acting under the authority or the control of the service provider."
- The somewhat unfamiliar expression "information society service" is explained in Regulation 2, which refers to Recital 17 of the E Commerce Directive. Such services cover "any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service". Further assistance is to be found in Article 1(2) of the European Directive 98/48/EC (the Amended Technical Standards Directive):
"For the purposes of this definition:
- 'at a distance' means that the service is provided without the parties being simultaneously present,
- 'by electronic means' means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electro-magnetic means,
In the Regulations the term "recipient of the service" is defined by Regulation 2 as being "any person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible". It is thus clear, according to the evidence, that Google Inc is the provider of Blogger.com which is an information society service; correspondingly, the "London Muslim" blogger is a "recipient" of the service, which he uses for the purpose of making information accessible.
- 'at the individual request of a recipient of services' means that the service is provided through the transmission of data on individual request."
Thus, Ms Evans submits that Mr Tamiz will only have a viable claim against Google Inc if he has a reasonable prospect of establishing at trial that it had, at the time the proceedings were commenced, "actual knowledge of unlawful information" or was "aware of facts and circumstances from which it would have been apparent to the service provider that the information was unlawful".
It is clearly important to focus on the meaning of the word "unlawful" in this context. As I have already noted, under the common law, it is generally reckoned that the publication of a "defamatory" allegation is not necessarily unlawful. While it may bear a prima facie defamatory meaning on its face, such a publication may ultimately prove not to be unlawful if some recognised defence is available. The point was addressed in Bunt v Tilley, at , where it was observed that "in order to be able to characterise something as 'unlawful' a person would need to know something of the strength or weaknesses of the available defences". I was invited to consider also the terms of paragraph 16.75 of Dr Matthew Collins' work The Law of Defamation and the Internet (3rd edn):
"Suppose, for example, that a host knows that its server contains information imputing that an individual is guilty of a serious crime, but knows no facts or circumstances bearing one way or the other on the truth or falsity of that imputation. In those circumstances, it seems likely that the host would be entitled to rely on the Regulation 19 defence. The host does not have actual knowledge that the information on its server is unlawful, and is not aware of factual circumstances from which it is or would have been apparent that that information is unlawful."
A similar approach was adopted in Kaschke v Gray  1 WLR 452, at , by Stadlen J and in Davison v Habeeb, at , by Judge Parkes QC. As was recognised, in each of the passages cited, the intention underlying Regulation 19 is to afford a powerful and clear defence to a provider unless the relevant state of knowledge can be established.
It is important now to take account of the recent decision of the Grand Chamber in Luxembourg in L'Orιal SA and ors v eBay International AG and ors, 12 July 2011. That was concerned with interpreting Article 14 of the E Commerce Directive upon which Regulation 19 itself is based. Ms Evans invited my attention especially to paragraphs -:
"120. As the case in the main proceedings may result in an order to pay damages, it is for the referring court to consider whether eBay has, in relation to the offers for sale at issue and to the extent that the latter have infringed L'Orιal's trademarks, been 'aware of facts or circumstances from which the illegal activity or information is apparent'. In the last-mentioned respect, it is sufficient, in order for the provider of an information society service to be denied entitlement to the exemption from liability provided for in Article 14 of Directive 2000/31, for it to have been aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question and acted in accordance with Article 14(1)(b) of Directive 2000/31.
121. Moreover, if the rules set out Article 14(1)(a) of Directive 2000/31 are not to be rendered redundant, they must be interpreted as covering every situation in which the provider concerned becomes aware, in one way or another, of such facts or circumstances.
Ms Evans highlights particularly the words "insufficiently precise or inadequately substantiated", set out in paragraph 122, as being consistent with the approach taken in the English cases to which I have referred. Accordingly, she submits, a provider who simply receives notification that particular words are alleged to be defamatory will not have received notification of illegality in terms that are adequately substantiated. Such a provider would not have actual knowledge of illegality; nor an awareness of facts or circumstances from which it would have been apparent that the information was unlawful. In order to achieve that state of mind, it would be necessary to examine and consider, on an informed basis, the validity or strength of any available defences (including, for example, those of justification, fair comment and qualified privilege in one or other of its recognised forms).
122. The situations thus covered include, in particular, that in which the operator of an online marketplace uncovers, as the result of an investigation undertaken on its own initiative, an illegal activity or illegal information, as well as a situation in which the operator is notified of the existence of such an activity or such information. In the second case, although such a notification admittedly cannot automatically preclude the exemption from liability provided for in Article 14 of Directive 2000/31, given that notifications of allegedly illegal activities or information may turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality."
For good measure, Ms Evans also referred to Regulation 22, which is concerned with the notice by which actual knowledge is said to be imputed:
"In determining whether a service provider has actual knowledge for the purposes of regulations 18(b)(v) and 19(a)(i), a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, among other things, shall gave regard to
(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c), and
(b) the extent to which any notice includes
(i) the full name and address of the sender of the notice;
(ii) details of the location of the information in question; and
(iii) details of the unlawful nature of the activity or information in question."
In this particular case Ms Evans highlights the absence of any "details of the unlawful nature of the activity or information in question"; in other words, no explanation is offered as to the extent of inaccuracy or the inadequacy of any defence. 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 Regulation 19, 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.
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 Regulation 19.
The outcome of the application
For these reasons it seems to be appropriate, in accordance with Ms Evans' submissions, that the court should decline jurisdiction in these proceedings. Accordingly, the Master's order for service out of the jurisdiction will be set aside.
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