The UK Court of Appeal has held that in certain circumstances, Google may be considered a publisher of defamatory comments on Blogger.com, an internet service provided by Google. The judge found that where defamatory material was allowed to remain on a blog after the service provider had been notified of the content’s defamatory nature, it may be responsible for the continued presence of that material and thereby, become a publisher. Time is a factor and, in this case, 5 weeks had elapsed between notification and removal. The appeal judge found that the time taken was sufficiently long to leave room for an inference to be drawn that Google was a publisher of the defamatory comments.
The Court distinguished between the Blogger.com service and the services provided by Internet Service Providers (ISPs) which are more passive. It found that the provision of a platform for blogs is equivalent to the provision of a noticeboard but that Google went further by providing tools to help a blogger design the layout of the noticeboard and by providing a service that enables a blogger to display advertisements. It also concluded that Google defines the limits of permitted content, makes the noticeboard available to bloggers on terms of its own choice and can readily remove or block access to any notice that does not comply with its terms.
The judgment is noteworthy because it finds that a claim against a service provider, in the period after notification of defamatory content, is actionable. The Court applied principles from much older defamation cases to conclude that if Google is notified of defamatory content but allows it to remain, it makes itself responsible as a publisher for the continued presence of the defamatory material.
It was also found that Google might not be in a position to rely on the innocent publication defence provided by the UK Defamation Act because (having received notice of the defamatory content) Google did not satisfy the test that it “did not know and had no reason to believe” that it contributed to the publication of a defamatory statement. The Irish Defamation Act provides for a similar defence where the service provider can prove that it was not the author, editor or publisher of the statement. This decision demonstrates that once on notice of defamatory content, the service provider which offers more than a passive ISP service must act swiftly to investigate complaints and remove content where defamatory.
Contributed by Sinéad Keavey.
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