Liable for libel?

Posted: 4th December 2012

BloggerIn a unique test case that raises critical issues on the policing of the internet, the Court of Appeal is considering arguments put forward by Google Inc. that its blogging platform is a ‘purely passive wall’ that is
immune from suit under English defamation laws. The company argues that its popular Blogger.com site ‘should not be regarded as a publisher or even as one who authorises publication’.

Google had its arguments upheld by the High Court in March 2012, but that ruling is now being challenged at the Court of Appeal by lawyers representing former Conservative Party election candidate and law student, Payam Tamiz. Mr Tamiz is suing Google in respect of eight stinging ‘comments’ posted on the blogging site which, inter alia, accused him - without a shred of truth or justification - of being a drug dealer and having stolen from his employers.

At the High Court, Mr Justice Eady struck out by Mr Tamiz’s case on the basis that Google had an unanswerable defence to the claim. In ruling that Google could not be viewed as a publisher in the circumstances, the judge equated the company to the innocent owner of a wall on which graffiti is emblazoned by a third party. He accepted Google's arguments that it has no control over any of the blogging site’s content and acts merely as a neutral service provider.

He concluded: ‘I would be prepared to hold that it (Google) should not be regarded as a publisher, or even as one who authorises publication, under the established principles of common law. As I understand the evidence, its role as a platform provider is a purely passive one. I would rule that Google Inc. is not liable at common law as a publisher.’

Attacking the judge's decision at the Court of Appeal, Mr Tamiz’s legal team insists that Blogger.com's role goes beyond mere ‘hosting’ or ‘storage’ of information. It is submitted that the judge should have found that the blogging site was a primary publisher or, at least, that Google was under a duty to act swiftly when notified of the potentially defamatory content.

Mr Tamiz’s lawyers argued: ‘The notion that the internet runs 'automatically' or 'passively' is in essence a powerful myth which has been fostered very successfully and profitably by internet superpowers such as Google Inc…It suits their business model to take and to be seen to be taking a 'hands off' approach and not really able to do anything about problems that may be generated by their internet-based operations.’

Libels published online are, it was submitted, all the more damaging due to the ‘archival nature’ of the internet. Articles published in newspapers are ‘one-off and transient’ whereas defamatory statements made on the web remain permanently inscribed for the world to see. It was also pointed out that, under current libel laws, any number of parties may be liable for defamatory statements, not just journalists or newspapers but also printers or even delivery companies or news agents involved in distribution.

Mr Tamiz’s lawyers argued: ‘The right to freedom of expression has no priority or precedence over the right to respect for privacy and family life. A rational and reasonably certain system of law and rights cannot operate on the basis of benevolence; that people can be trusted to do the right thing voluntarily. This would be a system based on whim or caprice. If everyone could be relied upon to do the right thing there would be no need for the law.’

However, Google’s lawyers submit that the judge was right to find that the company had had no involvement in publication of the libels. ‘Blogger.com is a platform that allows any internet user around the world to create his or her own independent blog, free of charge. It is a piece of computer technology... Google does not create, select, solicit, censor or approve the content of a blog, which is published and controlled only by the blog owner or blogger,’ it was argued.

Given the widespread importance of the issues raised by the case, the Court of Appeal has reserved its decision on Mr Tamiz’s appeal and will give its ruling at a later date.