Publication - Internet posting - Claimant bringing libel action against first and second defendant companies

Tamiz v Google Inc and another: Queen's Bench Division (Mr Justice Eady): 2 March 2012

The claimant brought a libel action against the first and second defendants in relation to eight comments which were said to be defamatory of him and which were posted on a blog at various times between 28 and 30 April 2011. The first defendant was a corporation registered in Delaware in the US, and its principal place of business was in California. It provided a range of internet services including via Blogger.com, also based in and managed from the US.

It was described as a 'platform' which allowed any internet user, in any part of the world, to create an independent blog free of charge. If someone used that service, without having his/her own web address (URL) then Blogger.com allowed users to host their blogs on Blogger.com URLs. That was the case with the blog on which the comments complained of in the instant proceedings were posted. In September 2011, the claimant was granted permission to serve the claim form on the first defendant in California. The first defendant sought to have that order, which was made on a without notice application, set aside in accordance with the provisions of Civil Procedure Rules Part 11(1) and (6).

The first defendant contended that the court should declare that there was no jurisdiction to try the claim on the basis, inter alia, that it was not a publisher for the purposes of the English law of defamation but merely a neutral service provider. The principal issue that fell to be determined was whether the first defendant was a 'publisher' according to common law principles. Consideration was given to the European Convention on Human Rights, in particular article 10.

The court ruled: Where the law was uncertain in the face of rapidly developing technology, it was important that judges should strive to achieve consistency in their decisions and that proper regard should be paid, in doing so, to the values enshrined in the European Convention on Human Rights. In particular, it was necessary to guard against imposing legal liability in restraint of article 10 of the Convention where it was not necessary or proportionate to do so (see [37] of the judgment).

In the instant case, the first defendant was not liable at common law as a publisher. It was significant that the first defendant was not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it had been notified of the complainant's objection or not. In the circumstances, the first defendant should not be regarded as a publisher, or even as one who authorised publication, under the established principles of the common law. Its role as a platform provider was purely a passive one (see [39], [62] of the judgment).

Accordingly, the court should decline jurisdiction in the proceedings and the order for service out of the jurisdiction would be set aside (see [62] of the judgment). Bunt v Tilley [2006] 3 All ER 336 applied; Godfrey v Demon Internet Ltd [1999] 4 All ER 342 considered; Metropolitan International Schools Ltd (t/a SkillsTrain and/or Train2Game) v Designtechnica Corpn (t/a Digital Trends) [2010] 3 All ER 548 considered; Davison v Habeeb [2011] All ER (D) 205 (Nov) considered. The claimant appeared in person.

Catrin Evans (instructed by Reynolds Porter Chamberlain LLP) for the first defendant; The second defendant did not appear and was not represented.