Notice and no-takedown

Last week’s decision in Tamiz v Google (High Court, Eady J) comes at a very important time for the debate on the liability of Internet intermediaries. The draft Defamation Bill is being considered in the UK (new Government response today), Ireland’s comprehensive review of copyright law is taking flight (excellent consultation paper just out – more on that soon), and the European Commission is preparing a ‘horizontal initiative’ on the liability provisions (articles 12-15) of the E-Commerce Directive.

In Tamiz, Google sought to have an order for service regarding a claim for defamation (regarding material published on Blogger) set aside.  Tamiz complained to Google about an article and various comments on a Blogger blog – first through the Report Abuse button and later in a series of letters of claim and other correspondence.  Google didn’t take it down, but some time after the letters started flying around, Google notified its user of the complaints, and the material was taken down by the user.

The valid claim was against Google (not Google UK), so it was an application to serve out of the jurisdiction, i.e. a preliminary stage.  The basis of Google’s success was not jurisdictional (some of the claims did constitute a real and substantial tort within England). Instead, it was substantive – that Google was not the publisher, or in the alternative was protected by the Defamation Act and/or the E-Commerce Directive. Eady J would have found in Google’s favour in all three cases – and so the claim is thrown out. (NB: this is not a search engine case – it is just that the host in question is ultimately owned by Google – lest there be any confusion).

Let’s start with the E-Commerce Directive (article 14, as implemented in the UK as regulation 19 of the Electronic Commerce Regulations), because it’s probably of the widest appeal to readers. What’s important about this finding (drawing on earlier English cases and also the ECJ decision in L’Oreal v eBay) is that Eady J makes it extremely clear that an allegation of defamation does not constitute actual notice of unlawful activity (i.e. triggering a takedown in order to avoid liability). “It cannot be right that any provider is required, in the light of the strict terms of Regulation 19, to take [Tamiz's complaint] at face value. Clearly more is required for a provider to acquire a sufficient state of knowledge to be deprived of the statutory protection” [60]. So there it is. No takedown, but still no liability.

This was hinted at as far back as Bunt v Tilley (very briefly), then in Kaschke v Gray and considered most recently in Davison v Habeeb - but Tamiz is the clearest example yet (albeit still as a dismissal at an early stage of proceedings).  Kaschke has a very complicated factual record, with the passages on the Directive being blanketed in double and triple negatives and probably obiter anyway.  Davison is much closer, and is the first to recognise the impact of L’Oreal but because of multiple claims of unlawfulness, and some comments on the notices in question, something sharper was needed in order for the position to be clear.  I think Tamiz does that.  (Although, it would have been clearer again if this were a normal case without the need to serve a US defendant).

The other issue, more specific to English law, is whether Google (Blogger) was a publisher (for the purposes of defamation law, at common law) at all.  It was established in Metropolitan Schools that a search engine was not a publisher. This was of crucial importance in England because the transposition of the E-Commerce Directive does not extent here to search engines.  In Tamiz, Eady J goes further and accepts that the act of hosting does not constitute publication.  (If correct, this means that there is no need to rely on the E-Commerce Directive at all). The use of analogy is fascinating: ‘it is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher” [38]. This is the opposite finding to that in Davison (which was also about Blogger) – and I expect the Court of Appeal will be particularly interested in sorting this one out.  However, the stakes aren’t as high as they were in Metropolitan, as the host has a wider choice of arguments.  (The court also finds that Google could rely on the statutory defence in section 1 Defamation Act 1996, but there’s less of interest or novelty in that section of the judgement).

So what are the implications of this decision?  For hosts, it may strengthen the resolve to keep material up, even if a letter alleges defamation.  The finding in multiple cases that there was no duty to take down because there was no actual notice, and Eady’s view that there was no publication to begin with, is a big win – although will it be enough to reassure hosts that they don’t have to take things down on receipt of a nasty letter?  For applicants, the lesson is to set out the nature of the unlawful activity in as much detail as possible.  For lawmakers, it’s a reminder of the weakness of the notice and takedown provisions of EU law, lacking in detail and clarity – but also, perhaps, a signal that a better procedure for working out what is ‘unlawful’ is necessary.

3 comments

  1. [...] post originally appeared on the Lex Ferenda Blog and is reproduced with permission and [...]

  2. This can have some effects for websites because they have to act fast whenever they get a notice to take down something for whatever reason by an aggrieved party. Especially if the aggrieved party is the subject in whatever is being asked to take down. This actually gives websites more time to have whatever is deemed offensive live. Right now leverage is more towards the individual. The Tamir case won’t be a landmark decision but a few more decisions may swing the momentum towards the websites and less towards the individual.

  3. [...]  The most popular posts were those on changes to copyright law in Ireland (e.g. this one), on the Tamiz decision, and an old post (search-engine friendly, and with a linked full-text PDF) on one of my articles on [...]

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