Galloway (George) v William Frederick Frazer, Google Incorporated t/a Youtube, Independent News Media t/a Belfast Telegraph, Persons Unknown, Google Uk Limited, Google Ireland Limited
| Jurisdiction | Northern Ireland |
| Judge | Horner J |
| Judgment Date | 27 January 2016 |
| Neutral Citation | [2016] NIQB 7 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 27 January 2016 |
| Year | 2016 |
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Neutral Citation No. [2016] NIQB 7 Ref: HOR9793
Judgment: approved by the Court for handing down Delivered: 27/01/2016
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
BETWEEN:
GEORGE GALLOWAY
Plaintiff;
-and-
1. WILLIAM FREDERICK FRAZER
2. GOOGLE INCORPORATED T/A YOUTUBE
3. INDEPENDENT NEWS MEDIA T/A BELFAST TELEGRAPH
4. PERSONS UNKNOWN
5. GOOGLE UK LIMITED
6. GOOGLE IRELAND LIMITED
Defendants.
________
HORNER J
INTRODUCTION
[1] This is an interlocutory application brought by Google Inc (“Google”) to set
aside the Order made by Stephens J of 23 October 2014 in which he granted leave to
the plaintiff to serve proceedings out of the jurisdiction on Google at its registered
office in Delaware, USA.
[2] I do not propose to set out all the arguments advanced by counsel for the
respective parties. This is not intended as a lack of respect for their efforts. I am
acutely conscious that this judgment on an interlocutory matter is disproportionately
long given the issues which are in dispute. Each party can be assured that I have
taken into account all the various arguments advanced on behalf of the plaintiff and
Google. I have endeavoured to read all the various authorities. All counsel can be
commended for their enthusiasm, although in truth there has been a uniformity of
effort which has resulted in every claim, regardless of its cogency, being often
afforded the same investment of time and energy. There has been a failure to
distinguish between strong and weak arguments. This has meant, and I take just
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one example, although the criticism applies to both sides, that Google has expended
much effort in claiming that it was misled by the plaintiff being called Connolly in a
letter sent to it by the plaintiff’s solicitors, KRW Law. Any reasonable reading of the
letter of complaint dated 27 August 2014 would quickly lead to the conclusion that
any confusion in the overall context was highly unlikely, as Mr Lockhart QC for
Google did concede.
[3] The ex parte application and the inter partes hearing in respect of the
application for leave to serve out of the jurisdiction involved 3 different judges, all of
whom had to read voluminous papers, listing on 14 separate days and the citing and
consideration of almost 100 legal authorities never mind various Statutes, Orders,
Regulations and Directives. I will offer suggestions at the conclusion of this
judgment as to how applications such as these can be better managed in the future.
The need to prioritise other work, and the requirement on at least three occasions to
re-read all the papers, has meant that delivery of this judgment has been delayed,
which is also unsatisfactory.
BACKGROUND INFORMATION
[4] George Galloway (“the plaintiff”) is a prominent British politician. He is the
founder of the Respect Party. William Frederick Frazer (“the defendant”) is a
Northern Ireland political activist who is well known in the province for his
involvement in street protests. Google is the owner of YouTube, which offers a
facility for posting video extracts on the internet. Google UK Limited is the UK
subsidiary of Google. Google Ireland Limited is the Republic of Ireland subsidiary.
There are other defendants, including Independent News Media PLC which owns
and publishes the Belfast Telegraph but it has played no part in the present
application.
[5] A writ of summons was issued on 9 September 2014 by the plaintiff claiming
damages and alleging that Google had unlawfully posted on YouTube videos from
the defendant and his supporters. These followed on from a “Saturday night with
George Galloway” event which had taken place at the Ulster Hall, Belfast, on
23 August 2014. At that stage Google UK Limited or Google Ireland Limited were
not defendants to the writ of summons.
[6] Google operates in 61 countries and across 61 languages. Each month, more
than one billion unique users visit YouTube and over 6 billion hours of video are
viewed. Sixty hours of video are uploaded each minute to YouTube. To date almost
one billion videos have been uploaded to the YouTube website. It is a truly
mammoth undertaking organised on a gigantic scale.
[7] YouTube asserts that it is an information society service as defined in the
Directive 2000/31/EEC – the “E-commerce Directive” and it provides hosting
functions within the ambit of Article 14 of the E-commerce Directive and Regulation
19 of the Electronic Commerce (EC Directive) Regulations 2002 (“the E-commerce
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Regulations”). In Gestevison Telecinco SA v YouTube LLC [2014] 2 CMLR 13 the
Madrid Court of Appeal ruled that YouTube was a “host” falling within the scope of
Article 14 of the E-commerce Directive. There is no doubt that Google in its guise as
a search engine is a data controller: see Google Spain SL and Google Inc v Agencia
Espanola de Datos and Another [2014] 3 WLR 569. However the case which was
originally made by the plaintiff did not include any complaints against the Google
search engine. It is also fair to say that the changes wrought by the internet and
social media in the field of communications have meant that the law has struggled to
keep up. There still remains a level of uncertainty about the nature of the functions
performed by these internet behemoths and what legal terms should properly be
applied to the functions they perform. Very often it will depend on the factual
matrix. A contested interlocutory application is not the forum in which to reach
determinations on controversial factual disputes. The court intends to leave the
resolution of such disputes well alone.
[8] YouTube has two ways of dealing with material which it is claimed is
unlawful. There is (a) the flagging system and (b) legal removal.
(a) YouTube users can “flag” content about which they object. YouTube then
reviews the flagged content to determine whether the video violates the
YouTube policies which are posted in the Community Guidelines. The court
has no idea how this review is performed.
(b) Alternatively, users can complain about legal issues and seek a video’s
removal on that basis. This can be done either by using a Removal Request
Page or through the “Reporting and Enforcement” section of YouTube. This
permits users to complain about, for example, breach of copyright or
defamation. It is averred that YouTube assesses each removal complaint on
its own merits. Again it is not exactly clear to the court how this procedure is
carried out.
[9] These two processes operate individually of each other and are staffed by
different personnel who apply different review criteria. A “flagging review”
considers whether the video complained of breaches YouTube’s terms of service
and/or Community Guidelines. On the other hand a legal review considers whether
the index video breaches the laws of that particular country from where the
complaint emanates.
[10] If a video is flagged and reported under both processes, then each different
section reviews it and determines on the respective criteria that that section has to
apply what should be done. In 2014 9,900,000 videos were removed in response to
user flags and over 3,800,000 videos were blocked in response to legal removal
reports.
[11] As I have said the court remains in the dark about just how these reviews are
carried out. It has no idea of the resources devoted by Google to these two separate
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