|Merpel has still to recover |
from Valentine's Day chocolates
Following dismissal of Mr Tamiz's claims by Mr Justice Eady (who held that that five of the comments could be characterised as "mere vulgar abuse" to which no sensible person would attach much weight, while three of them were found arguably defamatory) what was at stake before the Court of Appeal was whether:
(2) if it was a publisher, it would have an unassailable defence under section 1 of the Defamation Act 1996,
After recalling that blogger.com operates a 'Report Abuse' feature, which includes "Defamation/Libel/Slander" and that, in compliance with what is the law in the US, defamatory material will only be taken down if it has been found to be libellous by a court, Lord Justice Richards noticed that in this case Google had gone slightly further than the stated policy, in that the email by which it passed on to the blogger the details of the appellant's complaint contained an actual request to "please remove the allegedly defamatory content in your blog within three (3) days of today's date".
|After this ruling intermediaries |
might have less time to rest ...
The judge was also doubtful about the argument that Google's role is that of a secondary publisher, facilitating publication in a manner analogous to a distributor.
"if Google Inc allows defamatory material to remain on a Blogger blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material ... The period during which Google Inc might fall to be treated on that basis as a publisher of the defamatory comments would be a very short one, but it means that the claim cannot ... be dismissed on the ground that Google Inc was clearly not a publisher of the comments at all."
The judge was not satisfied that, if Google was found to be a publisher of the defamatory comments, section 1 of the 1996 Act would provide it with an unassailable defence. For that reason it was necessary to move to the issue whether any potential liability on the part of Google was sufficient to justify the maintenance of the proceedings against it.