FBC Manby Bowdler - Courts make it harder to stop on-line libel

Charlotte Clode, a litigation solicitor in the IP, Technology & Media Law Group of Wolverhampton law firm FBC Manby Bowdler LLP, says that Google has successfully fended off individual claims against it for potentially libellous comments posted on its sites, leaving individuals to fight their own battles.

She says: “With many postings being made by anonymous users, it means anyone objecting to on-line comments is likely to find their hands tied, when it comes to demanding the service providers remove them.”

The High Court ruling was made in a case brought by former Tory local council candidate Payam Tamiz, who took action after comments were made about him by a user on Google’s Blogger.com platform.

When he complained to Google, asking that the comments be removed, the internet service provider refused, saying that it would not do so unless Mr Tamiz proved them to be libellous, forcing him to sue the person who had made the postings. As it was unlikely he could trace the original posters, he opted to sue Google.

The internet giant defended its case on the basis that it had not published the comments, it simply provided the internet platform for the exchange of comments and information.

Miss Clode says: “Unlike newspaper publishers, who actively decide what to publish, Google held that its service was more like a notice board and drawing pins, arguing it could not be held responsible for messages and other material that were pinned up on the board it provided.

“However, those who feel libelled by on-line comments should not despair. It is becoming easier to track down the identities and addresses of anonymous posters and tweeters via the service providers and take legal action.

“Although in a criminal rather than a civil libel context, there have been a number of successful prosecutions of people who posted anonymous racial abuse of footballers online.”

Google also claimed that it was protected by the European Electronic Commerce Regulations, which provides companies such as internet service providers with a complete defence against claims for damages or for criminal liability arising from unlawful activities carried out on their servers.

When it reached the High Court, the judge agreed that under the terms of English law, Google had not published the allegedly libellous comments and that it was entitled to the protection given by the Electronic Commerce Regulations.

Miss Clode added: “Google had to show that it did not have knowledge of illegal activity and the court accepted that the mere fact that someone had made a complaint did not mean that Google was aware of illegal activity; as the comments might be perfectly valid.

“The case shows that the courts in England are reluctant to restrict the free flow of online information and the judgment creates a distinction between Google's position and the 2001 case of Godfrey v Demon Internet, where the judgment said that carrying a newsgroup and storing postings was sufficient to make an ISP a ‘publisher’. “