Normality Restored: Website Hosts May Again Be Liable For Defamatory User Generated Content

Introduction

The case of Tamiz v Google (2012) cased a stir in the field of online defamation because it created new immunity for websites against liability for defamatory user generated content. This applied regardless of whether someone had complained to the website and asked for the material to be removed: such complaints could effectively be ignored. A copy of Rhys' previous alerter on this case can be found here.

The Court of Appeal has now reversed this part of the decision and so normality has been restored. In this alerter Rhys will explain the case and the significance of the Court of Appeal's decision for website hosts.

Background

The first instance decision in Tamiz v Google was remarkable because it was totally at odds with the law as it stood. The legal position had been clear: website hosts were not liable for defamatory user generated content provided they did not in some way participate in its initial publication, for instance by vetting or editing it before publication. Thereafter, if a complaint was made, the website host had a choice to make: take down the material, in which case it would not be liable; or leave the material on the website, in which case it would assume responsibility and liability for it if it turns out to be unlawful.

The 'intermediary' defence outlined above is provided for by the overlapping provisions of s.1 of the Defamation Act 1996 and Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, as defined and developed by a body of case law starting with the landmark case of Godfrey v Demon Internet Limited [2001] QB 201. The use of the intermediary defence for website hosts is well known and well understood - both by lawyers and those involved in dealing with complaints about user generated content. However, this all appeared to change following Tamiz v Google.

The facts of the case

The case involved allegations posted about Mr Tamiz on the Blogger.com service provided by Google. Blogger.com is a platform which allows users in any part of the world to create an independent blog free of charge. Importantly, if the user does not have his/her own webpage they can use one hosted by Blogger.com, as was the case here.

The relevant blog concerned an article about Mr Tamiz's resignation as a Conservative Party candidate for local elections in Thanet. This prompted a number of comments from readers of the blog, some of which made serious allegations about Mr Tamiz. For instance, one of the...