By Robert D. Balin and Jeremy A. Chase
In a unanimous ruling issued on Thursday, Feb. 14, 2013, the England and Wales Court of Appeal held that Google may be deemed a “publisher” of (and held liable for) defamatory user-generated content appearing in blogs hosted by Google after being notified of the content’s defamatory nature. Payam Tamiz v. Google Inc.  EWCA Civ 68. Although the judgment was ultimately in Google’s favor, the decision highlights the significantly different legal principles that govern responsibility for user-generated content in the US and UK. Whereas, in the US, Section 230 of the Communications Decency Act provides Internet service providers (ISPs) and web site operators with immunity from defamation claims arising from user content (even if the ISP or operator declines to take down alleged defamatory user content following notice), the UK has developed a notice-based liability regime for Internet intermediaries—which was very much in evidence in the Tamiz decision.
The Tamiz case did not involve Google’s search engine. Instead, at issue in Tamiz was a service called Blogger.com, a Google-operated platform that allows Internet users to create their own blogs and, if they don’t have their own web address (or URL), enables them to host their blogs on Blogger.com URLs. On April 27, 2011, an article in “London Muslim”, a user-run blog hosted on Google’s Blogger.com, re-reported an earlier press allegation that Tamiz had withdrawn as a Conservative Party candidate for local office after it was discovered his Facebook page referred to women as “sluts.” Over the next three days, anonymous comments posted on the blog site further alleged that Tamiz was a drug dealer, had stolen from his employers and was hypocritical in his attitude towards women. Following a series of letters, emails and calls to Google UK, Tamiz ultimately sent a claim letter on July 5 contending that the blog postings were false. This letter was forwarded by Google, Inc. to the blogger responsible for the “London Muslim” blog on Aug. 11, and on Aug. 14 the blogger removed the challenged article and comments.
Tamiz subsequently brought a libel suit against Google in the London High Court, and was granted permission to serve Google in the US. On Google’s application to set aside the out-of-jurisdiction service, Mr. Justice Eady of the High Court “found three of the [blog]comments were arguably defamatory but that on common law principles Google Inc. was not a publisher of the words complained of, whether before it was notified of the complaint or after such notification.” Justice Eady further found that, that even if Google was deemed a publisher under common law principles, it had an absolute defense under Section 1 of the Defamation Act of 1996. Last, applying the UK’s “real and substantial” tort requirement, Justice Eady concluded that, given the short period between notification and removal of the offending blog material, the court should regard Google’s “potential liability as so trivial as not to justify the maintenance of the proceedings.” Accordingly, the High Court declined jurisdiction and set aside the order for out-of-jurisdiction service. Tamiz appealed from this judgment.
The Court of Appeal agreed with Justice Eady that, prior to actual notice, Google’s mere facilitation of publication of third-party blogs does not render it a “publisher” of those blogs (or subject it to liability) absent actual knowledge or reason to know that the user content is likely to be defamatory. However, in disagreement with Justice Eady, the appeal court held that once Google received Tamiz’s claim letter notifying it of the alleged falsity of the blog posts, Google’s failure to take down the material cast it in the role of a publisher by acquiescence. The Court of Appeal rejected Justice Eady’s analogy of the Blogger.com platform to a passive ISP and, instead, emphasized how Google “defines the limits of permitted content . . . , has the power and capability to remove or block access to offending material to which its attention is drawn, [and] facilitates the publication of the blogs . . . .”
The Court reasoned that, as in Byrne v. Deane,  1KB 818, where the owners of a golf club were held liable for allowing “defamatory verse” posted on the wall of their club to remain after learning of its existence, it could be inferred that Google “associated itself with, or . . . made itself responsible for, the continued presence of that material on the blog, and thereby . . . b[e]came a publisher of the material.” The Court of Appeal likened Blogger.com to “a gigantic noticeboard which is in [Google Inc.’s] control, in the sense that [Google Inc.] provides the noticeboard for users to post their notices on, and it can take notices down (like the club secretary in Byrne v. Deane . . .) if they are pointed out to it.” (quoting Davison v. Habeeb and Others,  EWHC 3031 (QB), 38). Following this rationale, the Court concluded that Google could be held liable as the publisher of the defamatory material in the period after it was notified.
The Court of Appeal then turned to whether Section 1 of the 1996 Defamation Act would insulate Google from liability even if it were a publisher at common law. Section 1 offers an absolute defense to persons sued for defamation if the person (a) “was not the author, editor or publisher of the statement complained of,” (b) “took reasonable care in relation to its publication,” and (c) “did not know, and had no reason to believe, that what [it] did caused or contributed to the publication of a defamatory statement.” The appeal court agreed with Justice Eady that Google satisfied both the first and second elements of the defense (and, in particular, that Google was not a “publisher” within the much narrower definition set forth in the statute, which excludes from the definition of publisher the operator or provider of a communications system who has “no effective control” over the person who posts defamatory content). The Court of Appeal found, however, that Google could not satisfy the third element. It concluded that “at some point after notification, Google Inc. knew or had reason to believe that its continued hosting of the material
in question caused or contributed to the
publication of a defamatory statement.” Accordingly, Google was not entitled to assert the Section 1 defense.
Finally, despite its holdings that Google could be considered a publisher of the defamatory blog postings and could not assert a Section 1 defense, the Court of Appeal concluded that the High Court properly set aside out-of-jurisdiction service on Google because there was no real and substantial tort committed within the jurisdiction. The Court reasoned that due to the nature of blogs—old posts, though still accessible, become less prominently featured as time goes by and the blogger posts more—it was highly improbable that a significant number of readers accessed the challenged comments after Google was notified and prior to the comments’ removal. Accordingly, the Court denied Tamiz’s appeal and affirmed the dismissal of the case.
While the Tamiz decision breaks no new ground, it is a reminder to US Internet publishers and media companies that the potential for notice-based liability arising from usergenerated content is alive and well on the other side of the pond—at least for the time being. Parliament is currently considering a Defamation Bill that, among other things, may potentially bring UK law more in line with the immunity principles applied in the US under Section 230, at least as to non-anonymous posts. (As to anonymous posts, the Defamation Bill appears to envision the continuation of a notice and take down regime, subject to specific regulations to be promulgated by the UK Secretary of State.). The bill is currently wending its way through the House of Lords, and its provision relating to the liability of website operators for user-generated content will likely be subject to further revisions and amendments. Stay tuned.