Tamiz v Google Inc & Anor – defamation law and the definition of a publisher
The facts in Tamiz v Google
Mr Payam Tamiz (“the Claimant”) was a candidate for local elections in Thanet in 2011. He resigned from his candidacy after he was alleged to have made inappropriate remarks. After his resignation a blog post was written on the “London Muslim blog” relating to the Claimant’s remarks. Comments were made on this blog post, eight of which were the subject of the litigation in Tamiz v Google Inc & Anor. These comments referred to Mr Tamiz as a “racist” and alleged that Mr Tamiz sold drugs, among other things. Mr Tamiz was unhappy with this and complained to the “Blogger” platform, which Google Inc owned. After correspondence with Google on the issue Mr Tamiz issued a claim form on or about 10 August 2011. It was issued on 16 August 2011 and the Master gave permission for Mr Tamiz to serve the claim form in California on 22 September 2011.
Google Inc sought to have the order allowing serving of the claim form on Google Inc set aside on the following grounds:
- That Google Inc is not a publisher of the material in question but a neutral service provider and could not have been expected to investigate whether such comments were defamatory
- That Google is not a publisher for the purposes of the English law of defamation
- That even if Google Inc were held to be a publisher, it would be protected from liability for the defamatory comments by virtue of Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002
The law relating to defamation
In order for a Claimant to succeed in a claim for defamation they must show that:
- That a defamatory statement has been made
- That this defamatory statement refers to the Claimant
- That the defamatory statement was published to at least one other person apart from the Claimant
In order for a statement to be defamatory it must lower the Claimant in the eyes of right-thinking people. This is an objective test.
Further, the defamatory statement must refer to the Claimant (even though it is not necessary that the Defendant should have intended that the statement refers to the Claimant). A statement can be defamatory even if it doesn’t mention the Claimant by name.
Thirdly – and this is the salient point in question in Tamiz v Google – the defamatory statement referring to the Claimant must have been communicated to at least one other person than the Claimant themselves. The issue at hand in Tamiz v Google was whether Google Inc could be held to be a publisher and therefore liable for the comments.
The High Court’s judgment in Tamiz v Google
The High Court first considered whether the comments made were defamatory. The Judge concluded that at least some of the comments on the blog had a defamatory sting. Whether Google was a publisher for the purposes of the English common law of defamation was then reflected upon. Mr Justice Eady found that Google Inc was not a publisher under defamation law as it was not required to take any positive step to remove offending material from the Blogger platform as its role as a platform provider was a purely passive one. Mr Tamiz’s claim for defamation failed. Although the Judge had no need to consider defences to the defamation claim on this basis he nonetheless proceeded to do so. Judge Eady therefore considered s.1 of the Defamation Act 1996 and concluded that a defence would be viable on this basis. He also concluded that an alternative defence based upon Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 would exempt Google from liability for defamation.