Defamation – An Update on Google Inc. and ISPs

The English High Court (Mr. Justice Eady) handed down its decision on 2 March 2012 in Tamiz v Google Inc. [2012] EWHC 449.

Mr. Tamiz sued Google for libel over allegedly defamatory remarks made on a blog posted on Google's Blogger.com service. In his decision, Mr. Justice Eady held that Google fulfilled:

"No more than the role of a passive medium for communication" and therefore "cannot be characterised as" a publisher. He also held that it was significant that Google:

"Is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant's objection or not … its role, as a platform provider, is a pure passive one".

Mr. Justice Eady's determination was that Google Inc. was not a publisher at common law and therefore could not be liable for defamation, even after it had been notified of allegedly defamatory material.

This decision moves the goalposts further towards the freedom of speech. It also develops the law from the decision of Mr. Justice Fok JA in Oriental Press Group Limited and Another v Fevaworks Solutions Limited, CACV No. 53 of 2011 (discussed in our February 2012 newsletter).

As we said in our last newsletter, the facts of each particular case need to be looked at, but where the ISP or intermediary is one which merely provides the means through which information is stored, transferred and accessed, its position is less likely to that of a publisher at common law.

Whether or not Mr. Justice Eady's decision will be followed in Hong Kong has yet to be seen, but one has to be hopeful, given Mr. Justice Fok JA's preference for following Mr. Justice Eady's approach in an earlier case (Metropolitan International Schools v Designtechnica Group and Others).

So, in conclusion Plaintiffs need to carefully determine the nature of the intermediary they intend to sue: they may be better served not pursuing a passive intermediary, but rather looking behind the intermediary to the "real" publisher and seeking relief against the writer or creator of defamatory content (relief alluded to by both Mr Justice Eady and
Mr Justice Fok JA).