'Tamiz v Google' - Online Blogs, Defamation And ISP Liability

In March this year, the High Court (Eady J) gave judgment in the case of Tamiz v Google,1 which provided further guidance on the circumstances in which internet service providers (ISPs) could be held liable for third party defamatory content. The judgment fell heavily on the side of protecting ISPs and encouraging freedom of expression. While this is seemingly good news for ISPs, some of Eady J's statements were non-binding obiter comments and therefore ISPs should still act with a degree of caution in dealing with alleged defamatory content.

FACTS

The claimant in this case (Mr Tamiz) was in the news in April 2011 because of allegations that he had resigned as the Conservative Party candidate in Thanet after making inappropriate remarks about women. In response to this story, a blogpost appeared on the London Muslim blog called "Tory Muslim candidate Payam Tamiz resigns after calling girls 'sluts'." Mr Tamiz claimed that eight comments underneath that blogpost were defamatory; these comments made various allegations against Mr Tamiz, including that he was dishonest, a drug dealer and that he had stolen from his employer.

The original blog and the offending comments were posted using Google Inc.'s Blogger.com platform, which is hosted in the USA. Mr Tamiz did not bring a claim against the original blogger or those who wrote the comments underneath because they were anonymous and so it was hard to ascertain who was responsible. He therefore focused his libel claim on Google.

Mr Tamiz had obtained an ex parte order to serve his claim out of the jurisdiction on Google, Inc. However Google applied to set aside that order on the grounds that: (1) it had not committed a real and substantial tort within the jurisdiction; (2) it was not a "publisher" of the comments at common law; (3) it had a defence under section 1 of the Defamation Act 1996 (the "innocent dissemination defence"); and (4) it had a defence under Regulation 19 of the E-Commerce Regulations2 (the "hosting defence").

The High Court's decision on each of these arguments is considered below. By way of summary, Eady J held that, although a real and substantial tort had been committed within the jurisdiction, Google was not a common law publisher and could avail itself of both defences.

1. Jurisdiction

   A particular difficulty for claimants bringing proceedings relating to online defamatory content is to prove that a "real and substantial tort" has been committed in England and Wales.3 It is not enough that the comments were accessible on the Internet and that selected individuals accessed, read or downloaded the material. Claimants must go further and show that some credence has been given to the comments, which is likely to affect their reputation in the eyes of the reader(s).

   The judge reviewed the eight comments that Mr Tamiz had complained about and considered that the more serious statements had caused the Conservative Central Office to...