In blogger.com, Google provides a platform on the internet for bloggers all around the world, to write what they want for free. These blogs now contain more than a trillion words and 250,000 new words are added every minute. That is 40,000 words per second. It makes War and Peace look like a limerick.
And given that 99.9% (estimate without any mathematical basis whatsoever) of the world’s most scandalous bloggers are anonymous, Google was always going to find itself having to answer this question: is it liable for the defamatory publications of these bloggers?
In this case, Justice Eady of the UK High Court answered the question with an emphatic no.
What happened was this. On 28 and 30 April 2011, an article and 8 defamatory comments were posted about Mr Payam Tamiz, a former Conservative Party candidate in Thanet, on a blog entitled “ London Muslim”. The article was headed “Tory Muslim Candidate Payam Tamiz resigns after calling girls sluts”. Then under a photo of Tamiz, the words on the London Muslim website were these:
“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 thought this Tory prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks.”
Eight commenters posted further defamatory material after the article. Variously calling Mr Tamiz a drug dealer, a violent racist, from a family of criminals and not a nice person. Pretty nasty stuff. And all anonymous.
Soon after, Tamiz emailed Google Inc, under the “Report abuse” function. The Blogger Team ultimately stated that it would not pull the article down and asked Tamiz if it could inform the blogger of his complaint. Which it then did.
By the time this happened, it was August 2011, and within 3 days of being notified of the complaint by Google Inc, the blogger took the material down. Meanwhile, at around the same time, Tamiz issued proceedings against Google UK and Google Inc in America. He didn’t sue the blogger or the individual commenters. Obviously, he didn’t know who they were.
Given that Google UK only did marketing and support and had nothing to do with blogger.com, it was not a liable entity. The question remained of the possible liability of Google Inc in America. In September 2011, and in Google Inc’s absence, Tamiz was given permission to serve it with the proceedings outside the jurisdiction.
Google Inc subsequently sought an order setting aside the service of proceedings. Among other matters, it alleged that it was not a publisher of the blog (even after it got notice of Tamiz’s complaint) and therefore could not possibly be held liable. In which case, service of proceedings on it would be futile.
Google submitted this:
- In blogger.com, it regarded itself as providing a platform for the free exchange of information and ideas and would not wish to be seen as a censor. It would be virtually impossible for Google to exercise any editorial control over the content of the material published on blogger.com;
- It has no control over any of its content and is therefore not a publisher but merely a neutral service provider;
- It has no way of knowing whether the comments complained of were true or not and it cannot reasonably be expected to investigate and determine the truth or falsity of allegations made by bloggers;
- It was as if it owned a wall on which various people had chosen to inscribe graffiti and it did not regard itself as being more responsible for the content of these graffiti than would the owner of such a wall;
- It would be unrealistic to attribute responsibility to it for publication of material on any particular blog, whether before or after notification of a complaint; and
- In any event, it was protected by s.1 of the Defamation Act 1996 (UK) and/or Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002.
Putting to one side the English legislation, (which in any event, assisted Google Inc to deny responsibility), Justice Eady concluded that it was significant that Google Inc was not required to take any positive steps, technically, in the process of continuing the accessibility of the offending material, whether it had been notified of the complainant’s objection or not.
At , Eady J accepted Google Inc’s submissions and concluded that it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law. Its role, as a platform provider is a purely passive one.
So Tamiz’s case was struck out. No doubt that Google (and possibly Facebook and Twitter) will be rejoicing. But in the meantime, Tamiz is going to have to set about finding the anonymous blogger in cyberspace. Perhaps he can take a leaf from Liu’s book here in Australia? Sue John Doe.