Lex Ferenda

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.

Two interesting developments related to parody/satire and the law have caught my attention of late. Warning: long post ahead (I’ve been writing this one paragraph at a time for a while).

The first comes from the murky waters of English defamation law, though it ends with a victory for the newspaper. The claimant, Elton John (not a stranger to the libel courts) argued that a spoof ‘diary’ in the Guardian was defamatory; the Guardian’s defence was that the words could not have the meaning that John alleged, as the satirical purpose was clear. In a significant decision John v Guardian News & Media [2008] EWHC 3066, Mr Justice Tugendhat finds for the Guardian on this point, thus – in effect – destroying John’s case as there’s very little left beyond it. One of the most interesting points is in paragraph 22, where the judge explains the placement of the article in the Weekend section (‘not the news section’) which may well be of use to future defendants. While there is no express, standalone ‘defence’ of satire, parody or irony under libel law, in practice there are certain things that are taken to be easy to defend as not carrying a defamatory meaning. This decision clarifies the scope of this defence and is a helpful one. Further comment here and here, and read the original article by Marina Hyde here.

The second is from further afield, being the exchange on a number of excellent Canadian IP blogs regarding a decision of the British Columbia Supreme Court, Canwest v Horizon 2008 BCSC 1609. In this decision (at a preliminary stage in an ongoing case), the producers of a ‘fake’ edition of the Vancouver Sun are prevented from relying on parody as a defence to a copyright infringement claim. In the US, of course, this was the weapon of choice for a note-perfect fake New York Times (content and legal issues discussed here. The precedent relied upon is a curious enough case I remember from student days, Michélin v CAW (1996). Infamously, in this case relating to the use of Michélin trademarks and copyrighted images by trade union CAW in a campaign against Michélin, it was found that:

parody does not exist as a facet of ‘criticism,’ as an exception to infringement in Canadian copyright law. (It is accepted that) parody in a generic sense can be a form of criticism; however, it is not ‘criticism’ for the purposes of the Copyright Act as an exception under the fair dealing heading

Carys Craig argued in her contribution to the Michael Geist-edited In The Public Interest book on Canadian copyright law (available here) that subsequent Canadian cases (in particular CCH v Law Society) cast doubt on the Michélin precedent, and Giuseppina D’Agostino makes a similar argument, informed by a comparative analysis of Canadian, US and UK cases and legislation, e.g. here . I would expect that, if the decision to strike the defence in the Horizon case is appealed, this point would be made with some force (I don’t know if it was made in advance of the BC decision – the judgement does not reflect it in any event). The issue is ably summarised in a recent post at IPOsgoode by Anna Shahid. There is also a very interesting exchange between lawyer-blogger Howard Knopf and Osgoode professor Guise D’Agostino on Knopf’s blog here and here, on the question of various approaches to legal reform, legislative and otherwise.

David Vaver adds in a comment that Michélin is wrong and also that the defence in Horizon was struck out without sufficient consideration of the constitutional issues. That indeed is a troubling point.

This area is the subject of some interest across the common law world. Three examples:

1. In the UK, it was recommended in the 2006 Gowers Report that a specific defence for parody/satire/pastiche be introduced (Recommendation 12) . Further information here. (Gowers himself is back in the news this week as an opponent of the proposed extension of copyright term for sound recordings. More on that soon).

2. In Australia, there is a specific provision in copyright law introduced in 2006:

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire (s 41A, Copyright Act)
A fair dealing with an audiovisual item does not constitute an infringement of the copyright in the item or in any work or other audiovisual item included in the item if it is for the purpose of parody or satire (s 103AA, Copyright Act)

Nic Suzor has recently published an excellent article on the circumstances leading up to this amendment (PDF here).

3. Finally, a discussion document on a similar clause is planned in New Zealand for this month.

This is the second and final part of a report on the Media Law & Regulation seminar hosted by the School of Law, Trinity College Dublin. For part one, see here. Three very different issues were addressed in this session – the protection of sources and two defamation topics, trial/pre-trial procedures and damages. Again, this is a report without links, they’ll be added later.

Luan Ó Braonáin SC, a barrister, spoke about the ‘Protection of Journalistic Sources’, comparing Gray v Minister for Justice (Quirke J, HC), where it was noted that a “questionable privilege” was asserted by the journalist, and Mahon v Keena (Divisional HC), where it was agreed that it was well established that there was a privilege against non-disclosure. Choosing deliberately to begin his analysis with Article 34 of the Constitution (explaining that judges and courts administer justice and not parties, witnesses or the media) and the role of the law of contempt of court, he summarised the accepted law on privilege as relating to legal professionals, religious (sacerdotal) situations and members of the Oireachtas (in respect of parliamentary utterances). Under Irish jurisprudence, he argued, journalists “don’t have a privilege not to answer questions in a court if directed to do so by the court”.

He reviewed the history; in 1991, a Law Reform Commission consultation paper expressed the view that the law (as it was) shouldn’t be amended; the law at the time was Re Kevin O’Kelly (a case where a journalist was jailed for three months for refusing to disclose a source). The language of the LRC was not the most positive towards the media and their role; they found pretty quickly that the media went crazy about this! When the report was published in 1994, criticism was noted and principles examined in more detail but a majority of the Commission agreed not to disturb O’Kelly; a minority favoured the British (statutory) approach, being section 10 of the Contempt of Court Act 1981. Subsequently, the European Court of Human Rights found that the British protection of sources itself was inadequate, in Goodwin v UK.

What has happened in Irish jurisprudence since the LRC and Goodwin in relation to the protection of journalistic sources? Ó Braonáin turned to the recent decisions.

Turning first to Gray, where there was a claim for damages in relation to privacy (information was leaked by the Gardai to a journalist, who wrote a story about the Grays ‘harbouring a sex offender’; see a summary from Eoin O’Dell’s blog *here*), the question was what evidence could they (the Grays) produce that there had been a leak? The journalist testified saying that he had received an anonymous phone call from a woman, but refused to answer whether he had spoken to members of the Gardai as this would disclose the source of his information. Asked if the statement that Gardai are ‘not commenting’ in the article is true (yes), then asked if they ever did comment (no answer) – thus the plaintiffs established it to the satisfaction of the judge (no other conclusion possible). The judge took an approach which avoided disclosure (through nuanced, clever questioning without having to force), but also expressed scepticism about the existence of the privilege. This subtle approach is the “correct approach”, Ó Braonáin said, as this is not actual privilege, which journalists are not entitled to. But while this is not a privilege, there is nonetheless an interest on the part of a democratic society in allowing information to reach the media. Our Constitution makes provision for freedom of expression and that the people have an entitlement that is not to be interfered with unnecessarily.

In Mahon v Keena, the Court focused entirely on the Convention aspects, made “fairly swinging findings” that there was a principle of non-disclosure (although in the context that the parties did not dispute this which is very relevant). The problem with the O’Kelly approach was that it was in a context of judges trying to assert their authority by compelling witnesses to answer a question – but now, because of the constitutional and Convention contexts, judges are more willing to seek ways to avoid such a conflict (as in Gray). There’s little doubt that the High Court would have jailed Kennedy and Keena if they could have. He concluded by saying that we await litigation between a newspaper and a litigant where the latter doesn’t accept the Convention stance.

Karen Harty (McCann Fitzgerald) spoke next. Harty is a solicitor, she explained, who has specialised in media law since being an apprentice, but does a balance of plaintiff and defence work. Her comments related to procedural deficiencies in the libel law system, but she noted that she is ‘not a fan; of the Defamation Bill. If procedures not operating efficiently or effectively, the law can be irrelevant. She added that some aspects of the Bill seemed to be (as in the classic Father Ted episode) running the risk of destroying the car by trying to fix a dent with a hammer; the motor theme was continued by the metaphor of the High Court as the ‘engine’ that must work correctly if the system of defamation law is to stay on the road. The system from publication to decision was explained and criticised, noting problems with delay, information and more.

On the issues raised in earlier talks, it was wondered whether the drafters of section 24 have thought about the practical implications of what they drafted? It is clear in the Bill that the jury decides whether the defendant has complied with responsible-journalism requirements; in the UK, the practice has developed that in a jury case, the judge is the arbiter of fact in relations to Reynolds. Therefore the jury will have to be presented with a detailed list of questions to be answered. Also relevant is the fact that such defences will lead to detailed particulars being sought by the plaintiff (i.e. in pre-trial phases) of the responsible steps taken by the journalist.

Harty’s wishlist for reform included assigning judges to the jury list who could build up expertise, reforming the time and scheduling elements of the listing process, the introduction of case management and more. She hoped that academic members of the audience would come away with a better perspective on the realities of libel litigation for the people involved.

Paula Mullooly (McAleese & Co), also a solicitor with significant defamation law experience, spoke about damages in the law of defamation, discussing the role of aggravated and exemplary/punitive damages. Apologies for the lack of a report here (a technical error of my own making); Mullooly discussed in particular Crofter v Genport, the recent (non-libel) Shortt case (where significant punitive damages were awarded), the taking of the defendants’ means into account in Steel & Morris v UK (the famous “McLibel” case), the ‘unofficial’ cap on damages in the UK, and more. She also reviewed the amounts awarded by the Irish courts in various cases such as the libel actions brought by Denis O’Brien and Proinsias de Rossa, and also discussed the slander action (itself a rare beast in Irish law…) by Joseph Murphy Jnr (where €300,000 was awarded!)