Payam Tamiz v Google Inc. and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Sullivan,Master of the Rolls |
| Judgment Date | 14 February 2013 |
| Neutral Citation | [2013] EWCA Civ 68 |
| Docket Number | Case No: A2/2012/0691 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 2013 |
[2013] EWCA Civ 68
The Master of the Rolls
Lord Justice Richards
and
Lord Justice Sullivan
Case No: A2/2012/0691
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Eady
Royal Courts of Justice
Strand, London, WC2A 2LL
Godwin Busuttil (instructed by Brett Wilson LLP) for the Appellant
Antony White QC and Catrin Evans (instructed by Reynolds Porter Chamberlain LLP) for the Respondent
Hearing dates : 3-4 December 2012
The respondent, Google Inc, is a corporation registered in Delaware and with its principal place of business in California. It provides a range of internet services including Blogger (also referred to as Blogger. com), a service based and managed in the USA but available worldwide. Blogger is a platform that allows any internet user in any part of the world to create an independent blog (web log). The service includes design tools to help users create layouts for their blogs and, if they do not have their own URL (web address), enables them to host their blogs on Blogger URLs. The service itself is free of charge but bloggers can sign up to a linked Google service that enables them to display advertisements on their blogs, the revenues from which are shared between the blogger and Google Inc.
One of the blogs hosted on Blogger bears the name "London Muslim". The appellant, Mr Tamiz, complains that eight specific comments posted on the London Muslim blog between 28 and 30 April 2011 were defamatory of him. There is an issue, considered below, as to when any complaint was first notified by him to Google Inc. It is common ground, however, that his letter of claim was received by Google Inc in early July 2011; that on 11 August 2011, after further email exchanges, the letter was forwarded to the blogger; and that on 14 August 2011 the blogger voluntarily removed all the comments about which complaint is made.
The appellant seeks to bring a claim in libel against Google Inc in respect of the publication of the allegedly defamatory comments during the period prior to their removal. He was granted permission by Master Eyre to serve the claim form on Google Inc in California. On Google Inc's subsequent application, however, Eady J held that the court should decline jurisdiction and that the Master's order for service out of the jurisdiction should therefore be set aside. The judge's order to that effect is the subject of the present appeal. The judge also held that Google UK Ltd had been joined in the proceedings inappropriately and that there was no triable claim against it. There is no appeal against that aspect of his decision.
In summary, Eady J found that three of the 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. If, contrary to that view, Google Inc was to be regarded as a publisher at common law, section 1 of the Defamation Act 1996 ("the 1996 Act") would provide it with a defence, in particular because it took reasonable care in passing the complaint on to the blogger after it had been notified of it. At this point of his judgment Eady J also indicated his acceptance of a submission that the period between notification and removal of the offending blog was so short as to give rise to potential liability on the part of Google Inc only for a very limited period, such that the court should regard its potential liability as so trivial as not to justify the maintenance of the proceedings, in accordance with the principles in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. Nevertheless he went on to consider an alternative defence under regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 ("the 2002 Regulations"), which he held would provide Google Inc with a defence if it were otherwise needed.
The main issues in the appeal, taking them in the order in which they were considered by the judge below, are (1) whether there is an arguable case that Google Inc was a publisher of the comments, (2) whether, if it was a publisher, it would have an unassailable defence under section 1 of the 1996 Act, (3) whether any potential liability was so trivial as not to justify the maintenance of the proceedings, and (4) whether Google Inc would have a defence, if otherwise necessary, under regulation 19 of the 2002 Regulations.
Before considering those issues it is necessary to say a little more about various background matters.
The comments themselves
An article in the Evening Standard on 27 April 2011 contained an allegation that the appellant had resigned as a Conservative Party candidate for local elections in Thanet after it had been discovered that his Facebook site referred to women as "sluts". The appellant sued separately in respect of that article and the proceedings were settled by a consent order. The topic was picked up in an article posted on the London Muslim blog on 27 April. This gave rise to a number of comments posted anonymously over the next three days. The comments complained of are set out in Eady J's judgment at [7]. The judge held that five of the comments could be characterised in this context as "mere vulgar abuse" to which no sensible person would attach much, if any, weight (see Smith v ADVFN Plc [2008] EWHC 1797 (QB) at [13]-[17], and Clift v Clarke [2011] EWHC 1164 (QB) at [32] and [36]). He found, however, that three of the comments (Comments A, B and D) were arguably defamatory. They included allegations that the appellant was a drug dealer, had stolen from his employers and was hypocritical in his attitude towards women.
The arguments on the appeal included a brief submission that the judge ought also to have found other comments to be arguably defamatory: in particular, Comment E which contained a suggestion that the appellant had made a fake asylum claim. But the judge directed himself correctly and I see no sufficient basis for interfering with the assessment he made on this issue.
Notification of the complaint
On the evidence before him, the judge dealt with the factual issue of notification as follows:
"15. According to Mr Tamiz, he first notified his complaint on 28 or 29 April 2011 (i.e. as the postings were taking place) when he used the "Report Abuse" function on the relevant web page. What became of this remains unclear.
16. A letter of claim was sent on 29 June to Google UK Ltd, which was received on 5 July. This complained of the original article, as being defamatory and untrue, although it was not subsequently sued upon in these proceedings. Complaint was also made of what is now described as Comment A. This letter was passed by Google UK Ltd to Google Inc, which responded to Mr Tamiz by email on 8 July. Clarification was sought as to whether the comment in question was said to be untrue, since his letter had not apparently made that clear. It was at this stage that it was pointed out to Mr Tamiz that the blogger service had nothing to do with Google UK Ltd.
17. Mr Tamiz responded promptly on 8 July to the effect that Comment A was indeed "false and defamatory". At this stage, he introduced a complaint about Comment B as well.
18. The 'Blogger Team' within Google Inc sent a further email to Mr Tamiz on 19 July, seeking his permission to forward his complaint to the author of the blog page. He was told, however, that Google Inc itself would not be removing the post complained of. Mr Tamiz responded by giving the necessary permission on 22 July.
19. In that email of 22 July, Mr Tamiz complained about a further five comments on the blog, now identified as Comments C, D, E, F and G. He confirmed that these were alleged to be defamatory and it seemed to be implicit also that he was characterising them as untrue.
20. After considerable delay, Google Inc forwarded the letter of claim to the blogger on 11 August of last year and informed Mr Tamiz that it had done so. As I have said, on 14 August the article and all the comments were removed by the blogger himself. Mr Tamiz was accordingly notified by Google Inc the following day …."
In his particulars of claim the appellant alleged that between 29 April and the letter of claim he made various telephone calls to Google UK Ltd and sent two letters, dated 29 April and 23 May, to that company's offices. Those allegations were not admitted by the defendants and were not supported by evidence at the hearing before Eady J. The defendants also contended that communications to Google UK Ltd were not capable of constituting notification to Google Inc. The transcript of the hearing makes it tolerably clear that the appellant was content in the event to proceed on the basis that the date of notification of the complaint to Google Inc was the date when the letter of claim was forwarded to Google Inc by Google UK Ltd, which fell between 5 July (when Google UK Ltd received the letter) and 8 July (when Google Inc first contacted the appellant by email). All this fits with the way the judge dealt with the matter in the passage quoted above.
The appellant has applied to adduce fresh evidence on the appeal, in the form of a witness statement in which he gives detailed further information about the Blogger service and about his dealings with Google UK Ltd and Google Inc, exhibiting inter alia copies of the two letters allegedly sent by him to Google UK Ltd. If that evidence is admitted, Google Inc applies to adduce fresh evidence in response, by way of a witness...
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