As Europe comes to terms with the impact of Delfi AS v Estonia (Application no. 64569/09, Decision of the First Section 10th October 2013), it is worth taking a moment to consider the approach taken to liability at common law of internet service providers by the English courts. The case of Tamiz v Google Inc ([2012] EWHC 449 (QB)) concerned defamatory anonymous comments posted on a blog hosted by Google in its role as internet service provider.
Mr Tamiz sued Google Inc for libel in relation to eight comments which were posted on a blog called ‘London Muslim.’ Google Inc. provided a service called Blogger.com, a platform which allowed internet users to create a blog free of charge, on which London Muslim was hosted. The eight comments were posted in response to an article about Mr Tamiz, which claimed that he had resigned as a local election candidate after making certain inappropriate remarks.
Google’s policy was not to monitor or censor content on its blogs, but it did provide a ‘Report Abuse’ function, which Mr Tamiz used to notify Google of his objection to the comments. After a considerable delay, Google forwarded the complaint to the blogger in question, who removed the comments. Mr Tamiz’s claim was that Google was the publisher of the comments at common law from the point at which he made his complaint, and was therefore liable for defamation.
The High Court found that Google could not be classified as a publisher at common law. As far as Eady J was concerned, Google’s role as a platform provider was a purely passive one. He also found that Google would be exempt from liability under the UK’s domestic implementation of the E-commerce Directive, the Electronic Commerce (EC Directive) Regulations 2002. In line with Article 14 of the Directive, the Regulations limit the liability of information society service providers to cases where the provider has knowledge of the unlawful activity or where it fails to act expeditiously to remove or disable access to the information.
Though it also found in favour of Google, the Court of Appeal ([2013] EWCA Civ 68]) took a different view of Google’s potential liability at common law. While the Court was not convinced that Google could bear any liability before it was notified of the comments, it was persuaded that Google might be liable after the point of notification. In the Court’s view, Google was in an analogous position to the owner of a gigantic noticeboard. It helped bloggers design their sites and display advertisements, and was readily able to block access to any blog that failed to comply with the terms which Google set. Therefore, during the period between the point at which Google was notified of the defamatory material and the point at which it took steps to have it removed, Google could potentially be regarded as the publisher at common law. The Court of Appeal did not address the issues raised under the Electronic Commerce Regulations
Though there is some divergence between the High Court and the Court of Appeal, both courts fundamentally accepted the validity of a notify-and-take-down procedure. The Court of Appeal accepted that Google could be rendered a publisher because of its delay in responding to Mr Tamiz’s complaint but neither Court required Google to take active steps to moderate content on blogs or to predict the publication of offensive material. In that sense, the decision is totally unlike that in Delfi. The focus is on the service provider’s duty to respond to a complaint, rather than on a duty to take positive steps to anticipate and prevent harm to individuals.
Note should be taken of the distinction between an Internet Service Provider and an internet news portal. Delfi exercised a great deal more control over the comments on its news site than Google did over its blogs. Furthermore, Delfi’s activity as a news source was intricately linked to the provision of a comment forum in a way that Google’s commercial activities were not. As such, it is difficult to say to what extent the decisions are incompatible. It is possible that the divergence between the common law and ECHR approaches stems from the distinction between ISPs and online news sources, a distinction that has yet to be fully teased out.
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