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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Richardson v Facebook  EWHC 3154 (QB) (02 November 2015)
Cite as:  EWHC 3154 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CAMILLE SASKIA RICHARDSON
|- and -
|CAMILLE SASKIA RICHARDSON
|- and -
|GOOGLE (UK) LIMITED
Caroline Addy (instructed by White & Case) for Facebook UK Ltd
David Glen (instructed by Pinsent Masons) for Google (UK) Ltd
Hearing date: 26 October 2015
Crown Copyright ©
Mr Justice Warby :
(1) order a reference to the CJEU pursuant to CPR 68 ("the Reference Issue");
(2) make orders for anonymity in the reference ("the Anonymity Issue");
(3) direct a stay of the appeals pending the said reference ("the Stay Issue"); or alternatively
(4) grant permission to appeal against the Orders of Master Kay QC ("the Permission Issue") and,
(5) if permission is granted, allow the appeals ("the Appeal Issue").
THE MANCHESTER ACTION
THE FACEBOOK ACTION
i) She first became aware of the Profile in May 2013. It made a variety of defamatory allegations about her private life which it is not necessary to detail here. It also contained personal information such as her date of birth, National Insurance number, and information about a criminal complaint she had made.
ii) The claimant emailed "the Facebook Service" requesting the removal of the Profile. A few days later it was removed. However, it continued to appear in Yahoo! and Google search engine results.
iii) On 24 January 2014 the claimant discovered that the same Profile had been republished once more on Facebook and was again accessible via search engines such as those already mentioned. She sent a request to "Facebook" to have the Profile removed again. It took another week for this to happen.
"In any event, Facebook UK's activities include public relations, consultancy, and communications. Importantly Facebook UK does not operate, host, or control the content available on the Facebook service, including any website available at www.facebook.com. Consequently, Facebook UK cannot comply with any request for user data.
It has been FBUK's consistent position in its evidence and submissions in this action that it does not control user content on Facebook social media, which control rests with Facebook Inc (a Delaware corporation), and Facebook Ireland Ltd.
"within 21 days of this order the Claimant must serve and file an amended Particulars of Claim which complies with the provisions of Practice Directions 53 2.1, 2.2 and 2.3."
The provisions mentioned here are those which require statements of case to be confined to the information necessary to inform the other party of the case he has to meet, to be concise and proportionate, to identify the publication complained of, and to specify the defamatory meaning(s) complained of.
The Master's decision
"to plead proper particulars of publication, and in particular that any actionable publication has taken place within the limitation period and within the jurisdiction; and
"to plead any proper particulars of her case that Facebook UK Limited was responsible for the purported failure to remove the words complained of from the internet within a reasonable time."
"4. Further the evidence provided by Facebook UK Ltd amply demonstrates that it is not the party responsible for hosting the relevant site or for controlling what is published thereon. That is one of two separate legal entities, namely Facebook Inc of the USA or Facebook Ireland Ltd.
5. In other words the Claimant has commenced the action against the wrong party and a claim against Facebook UK Ltd is bound to fail.
6. She was given early warning that this was the case and has chosen to ignore the warnings."
"3. The claim form and particulars of claim are stuck out and the claim is dismissed pursuant to CPR 3.4(2)(a), (b) and/or CPR 24."
The Permission and Appeal Issues
The libel claim
" the affixing of this notice to the walls of the defendants' property was in fact a trespass, and they were entitled as proprietors to remove the trespassing article from the walls. It was a matter which fell right outside the rules of the club; it was not authorized and, therefore, it appears to me that they had ample power, notwithstanding the position and rights of the committee, to remove something from their property the presence of which could not be justified under the rules."
"(b) that he took reasonable care in relation to the publication; and
(c) 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."
(1) Section 5 applies "where an action in defamation is brought against the operator of a website in respect of a statement posted on the website": s 5(1). Section 5(2) provides that "It is a defence for the operator to prove that it was not the operator who posted the statement." That defence can be defeated in certain circumstances, specified in s 5(3). These provisions are, on their face, applicable to actions brought against "operators" of websites. They provide a defence. Again, such a defence is only required by an "operator" if the operator would at common law be responsible for the publication. A person or entity that would not be responsible according to common law principles has no need of this or any defence.
(2) Section 10(1) provides that "A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher." Section 10(2) provides that for this purpose the terms "author, editor and publisher" have the same meaning as in s 1 of the 1996 Act.
"5. The defendant [FBUK] is a subsidiary of Facebook Inc, that owns the Facebook Service, which includes the website (www.facebook.com)
6. Under the Facebook Service terms of service ... Facebook Ireland Limited is the entity responsible for the processing of the personal data of users located outside the United States and Canada "
"She nevertheless takes issue with [FBUK's] case on responsibility for publication. She does so on the tendentious basis that (i) [FBUK's] purpose is Communications and Public Policy (ii) removing content falls within this remit and (iii) the Head of the Europe, Middle East and Africa Communications and Public Policy is 'stationed' in London, indicating that content responsibility is also located here."
Miss Addy rightly describes this as "illogical assertion". I agree. The reasoning is clearly unsustainable.
"9. The claim is fundamentally defective because Facebook UK Limited has no involvement in or responsibility for the Facebook Service as explained below, and could not be held liable for the alleged wrongdoing even if (which is denied) there were any merit to the claim.
10. I am informed that the Facebook Service is operated by Facebook Inc, a corporation organized and existing under the laws of the United States, and Facebook Ireland Limited, a company organized and existing under the laws of the Republic of Ireland. As explained in its terms of service, users outside of the United States and Canada contract with Facebook Ireland Limited
12. Section 18(1) of the [terms of service] states that Facebook Ireland Limited is the entity responsible for the processing of personal data of users located outside the United States and Canada. Furthermore the last paragraph of the Data Use Policy (see page 5 of Exhibit JMB 1) states again that for users outside the United States and Canada, Facebook Ireland Limited is the data controller responsible for the processing of personal data
13. Facebook UK Limited, however, is a separate and distinct entity. Facebook UK Limited's sole corporate purpose is public relations, consultancy, and communications in the United Kingdom.
14. Facebook UK Limited does not process personal data of users of the Facebook Service. Furthermore, Facebook UK Limited does not have control over the servers that host the Facebook Service, nor does it manage them. Facebook UK Limited does not access user data within the course of its operations or functions, and could not be liable in the manner apparently alleged by the Claimant in these proceedings.
15. Indeed, English Courts have previously found that Facebook UK Limited does not control or operate the Facebook Service (for instance in R v Blandford, Reading Crown Court, 13 April 2012) as well as, I understand a decision by the French Courts (Giraud v. Facebook UK Ltd, France Appeals Court of Paris, 4 January 2011)."
The Article 8 claim
"Each member state shall apply the national provisions it adopts pursuant to this Directive to the processing of personal data where: (a) the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State; "
" is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a member state, within the meaning of that provision, when the operator of a search engine sets up in a member state a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that member state."
Facebook as a 'hybrid public authority'
" Functions of a public nature
61. This is a domestic law concept which has no parallel in the Convention jurisprudence ..
62. The contrast is drawn in the Act between 'public' functions and 'private' acts. This cannot refer to whether or not the acts are performed in public or in private. There are many acts performed in public (such as singing in the street) which have nothing to do with public functions. The contrast is between what is 'public' in the sense of being done for or by or on behalf of the people as a whole and what is 'private' in the sense of being done for one's own purposes.
63. Hence it is common ground that 'functions of a public nature' include the exercise of the regulatory or coercive powers of the state.
65. While there cannot be a single litmus test of what is a function of a public nature, the underlying rationale must be that it is a task for which the public, in the shape of the state, have assumed responsibility, at public expense if need be, and in the public interest.
66. One important factor is whether the state has assumed responsibility for seeing that this task is performed. "
The Reference Issue
"I - GENERAL PROVISIONS
The Court's jurisdiction in preliminary rulings
1. The reference for a preliminary ruling is a fundamental mechanism of European Union law aimed at enabling the courts and tribunals of the Member States to ensure uniform interpretation and application of that law within the European Union.
The role of the Court of Justice in the preliminary ruling procedure
7. As stated above, under the preliminary ruling procedure the Court's role is to give an interpretation of European Union law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings. That is the task of the national court or tribunal and it is not, therefore, for the Court either to decide issues of fact raised in the main proceedings or to resolve any differences of opinion on the interpretation or application of rules of national law."
The Anonymity and Stay Issues
The Google Action
"Google UK does not provide any online services. It does not own Blogger and does not control the way in which Blogger works Google UK does not specify or control how data is processed on Blogger or what material is made available."
The Order of Master Kay QC
"1. This is a claim in which Miss Richardson seeks to establish liability for defamation upon Google UK Ltd which is the wholly owned subsidiary of Google Inc, a company established under the laws of Delaware and operated in California.
2. She has also sought to bring her claim under the Human Rights Act. In my view the Human Rights Act is irrelevant for present purposes and does not give rise to a cause of action against the Defendant.
3. The Draft Amended Particulars of Claim provided by the Claimant fail to show that the Claimant's case against Google UK Ltd has a real prospect of success:
a. Section 1(1)(a) of the Defamation Act 1996 provides that a person has a defence if he shows that "he was not the author, editor or publisher of the statement complained of".
b. The evidence available demonstrates that Google UK Ltd does not own or control the site upon which the offending material was posted. Therefore it is not the publisher.
c. That conclusion follows the decisions in Byrne v Deanee  1 KB 818, see p. 837, Tamiz v Google Inc  EWHC 499 (QB), see p. 597-598, para.4 and  1 WLR 2151 (C.A) and Metropolitan International Schools v Designtechnica Corp  1 WLR 1743.
d. The evidence provided by Google UK Ltd amply demonstrates that it is not the party responsible for hosting the relevant site or for controlling what is published thereon. The site is under the control of Google Inc of the USA.
e. Although the Claimant seeks to rely on the CJEU decision in [Google Spain], in my view that decision does not assist her. It can be distinguished because it is a case about data protection control rather that defamation and it is far from certain that it would be followed in this country in a defamation context. However even if it was followed the decision merely established the responsibility of a parent company for its operations within Europe but does not establish that its subsidiaries are to be held liable for those matters which fall within the responsibility of the parent company.
f. Insofar as the Claimant has argued that Google UK Ltd may still be liable, because it did not take reasonable care in the publication or because it had received notification and did not respond in a reasonable time, such arguments cannot succeed against Google UK Ltd. This is because those considerations can only apply to the actual publishers. On any construction section 1(1)(a) stands alone and it follows that if a party is not a publisher it cannot be held liable in any circumstances.
g. In any event it is apparent that the notification given by Miss Richardson in January and March 2014 was to Google Inc not to Google UK Ltd.
4. In my judgment, the Claimant has commenced the action against the wrong party and a claim against Google UK Ltd must fail.
5. The Claimant was given a warning that this was the case and has chosen to ignore the warnings.
6. With respect to the application to amend, permission should only be granted if the court holds that the amended statement of case contains material which has a real prospect of success, see the White Book at 17.3.6. Since I take the view that a claim against Google UK Ltd has no prospect of success it is not appropriate to allow permission to amend the statement of case."
The Permission and Appeal Issues
The Reference Issue
THE MANCHESTER ACTION again