Sunday, 4 March 2012

Hello Tamiz, goodbye Godfrey

Last Friday, in Tamiz v Google Inc, Google successfully challenged the English court’s jurisdiction to hear a libel claim against it founded on comments posted to a blog hosted on its Blogger platform.  Mr Justice Eady held that Google was not a publisher of the comments, even after notification of the complainant’s objections. 

Tamiz marginalises Godfrey v Demon Internet, the original English internet defamation case decided in 1999.  Godfrey held that an ISP that hosted Usenet newsgroups, since it had chosen to store the newsgroup in question on its servers and was able to obliterate postings to the newsgroup, was a publisher at common law.
Determining the defamation liability of an internet platform is now becoming a much more fact-sensitive and nuanced affair, heavily influenced by the need to have regard to the fundamental right of freedom of expression secured under Article 10 of the European Convention on Human Rights.  The decision in Tamiz moves a step further away from the rigid traditional doctrine that for defamation purposes anyone who participates in publication is liable as a publisher, unless saved by any specific defences available to intermediaries. 
In Tamiz the claimant over a three month period sent Google a series of complaints about a total of six different comments on a blog article.  He also complained about the original blog article, but ultimately did not sue over that.  Some three weeks after the last complaint, Google notified the blog owner who removed the article and comments within a few days.
Google argued that it neither could nor should be expected to investigate and determine the truth or falsity of allegations made by bloggers. With half a trillion words on the Blogger platform, and 250,000 new words added every minute, it would be unrealistic to attribute responsibility for publication of material on any particular blog to Google, whether before  or after notification of a complaint.
The judge commented:
“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.”
He agreed that notification of a complaint did not immediately, automatically or necessarily convert Google’s status or role into that of a publisher.  Likening Google’s position to that of the owner of a wall which has been festooned overnight with defamatory graffiti, he observed that Google was not required to take any positive technical step in the process of continuing the accessibility of the offending material, whether notified of a complainant’s objection or not.  On the evidence Google’s role as a platform provider was purely passive.  It was not a publisher at common law and so had no need to rely on any defence. 

For good measure the judge went on to consider the position if he was wrong about Google’s status, holding that if Google was a publisher at common law it would still have been able to rely on the intermediary defences under both the Defamation Act 1996 and the ECommerce Directive.
From the perspective of what the law ought to be, cutting back the broad common law doctrine of participation in publication is to be welcomed.   The doctrine cast too wide a net in pre-internet days, let alone post-internet.
Godfrey v Demon Internet represented an application of unvarnished traditional doctrine to the internet.  Eady J in Tamiz noted that Godfrey was decided 18 months before the Human Rights Act 1998 came into effect.  He stressed, as he did in Metropolitan International Schools (the case in which Google was held not to be a publisher of search engine snippets), the need to take into account the fundamental right of freedom of expression.  It was important to guard against imposing legal liability in restraint of Art 10 ECHR where it is not necessary or proportionate to do so.   
However, where does Tamiz leave the state of the law on common law publication?  Eady J acknowledged that:
“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”
and that he was ‘striving to achieve consistency in the court’s decision-making’. 

Indeed only two months ago in Davison v Habeeb, another case concerning the Blogger platform in which Google Inc challenged jurisdiction, HHJ Parkes QC held that Google was arguably a publisher of the blog articles complained of.  In that case, as in Tamiz, Google notified the blogger of the complaint after it was received.  The blogger did not remove the articles.  Google did so on a voluntary basis once proceedings were commenced. 
Notwithstanding Eady J’s striving to achieve consistency, much remains unclear.  In Tamiz and Davison we now have two first instance decisions concerning the Blogger platform which have reached different conclusions as to common law publication by Google, on facts which while not identical have much in common.  Are we to conclude that the fact that Davison related to blog articles, whereas Tamiz concerned comments posted in response to a blog article, is a significant point of factual distinction?  Or should we regard the decisions as inconsistent? 

While Tamiz tells us that notification is not necessarily sufficient for a host of a blogging platform to be a publisher, it does not go so far as to say that it could never become a publisher, or give much guidance as to when (if ever) the line might be crossed.  In Tamiz the judge appears to have set some store by Google’s forwarding of the complaint to the blogger (as it also did in Davison), but did not say whether the position would have been different had it not done so.
It is common ground in all the decisions that publication has to involve a mental element.  A merely passive role as a platform provider does not suffice.  In Bunt v Tilley Eady J held that the crucial consideration was whether a person had ‘‘knowing involvement in the process of publication of the relevant words.  It is not enough that a person merely plays a passive instrumental role in the process.’  In order to impose legal responsibility upon anyone under the common law for the publication of words, it was essential to demonstrate that they had a degree of awareness that such words existed, or at least an assumption of general responsibility.

On the basis of Tamiz, while a degree of awareness of the existence of the relevant words may be necessary for legal responsibility, it is not necessarily sufficient.
In Godfrey, Demon Internet as the ISP hosting the Usenet newsgroup to which the defamatory statement was posted was held to have had a more than passive role: 

“I do not accept [counsel’s] argument that the Defendants were merely owners of an electronic device through which postings were transmitted. The Defendants chose to store ‘soc.culture.thai’ postings within their computers. Such postings could be accessed on that newsgroup. The Defendants could obliterate and indeed did so about a fortnight after receipt.”
The main factual basis on which Godfrey is said to be distinguishable from Tamiz seems to be that Demon chose to host the Usenet newsgroup in question.   That now appears to be an increasingly slender point of distinction, the more so since soc.culture.thai would have been only one of many thousands of newsgroups hosted by Demon at that time.  The judgment contains no discussion of the extent to which Demon may or may not have selected which newsgroups to host.  Further, there would have been many postings within each newsgroup, in which case it is debatable how choosing to host a newsgroup can amount to knowing involvement in the process of publication of the relevant words.

Final resolution of the issues raised by Tamiz and Davison will have to await a decision of an appellate court.  It should also be remembered that in those cases and also in Bunt v Tilley the claimant acted in person, without legal representation. 
However, it does seem increasingly clear that Godfrey v Demon Internet represents the high water mark in mechanistically applying the traditional pre-Human Rights Act defamation rules regarding publication.  Notwithstanding the attempts of later courts to distinguish Godfrey on its facts, if Tamiz is right then it must now be doubtful whether Godfrey would be decided the same way today.  If not already flatlining, Godfrey may fast be approaching its terminal phase. 

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