Case law on the Internet and sexual harassment at work Ms Morse was employed as the Head of Multimedia at Future Reality Limited from March to August 1995. She was the only woman to share an office with several men who spent much time viewing and downloading sexually explicit and obscene images from the Internet, […]
On 8 April 2014 the European Court of Justice ruled that the Data Retention Directive 2006/24/EC interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data. The Directive is declared invalid. Today’s guest post by Sylvie Rousseau and Matthias Vierstraete explains what the court decided […]
I have just been sent a link to a story of how "Anonymous", whoever or whatever they are, "solved" a particularly nasty case of gang rape and cyberbullying leading to suicide inside two hours after the RCMP had got no-where in year. The case raises many issues from how police investigations should be conducted in the Internet Age through to the evidential quality, if any, of material that is widely circulated and believed.
Strictly this aspect of the Court of Appeal’s judgment was obiter, since Tamiz’s claim only covered the period after Google was notified of his complaint. Nevertheless, like Eady J at first instance, the Court of Appeal considered the position pre-notification.
The court was less certain that Google’s role was not that of a secondary publisher, expressing itself only ‘very doubtful’ that it was so. The court’s reasoning on this point on the face of it conflates what one would think should be three separate issues.
However the same confusion has bedevilled the innocent dissemination cases since at least Vizetelly v Mudie’s Select Library, a century-old case in which Romer LJ and Vaughan Williams LJ got in a tangle about whether innocent dissemination precluded publication or absolved the disseminator from liability for publication.
Although the Court of Appeal did not address the point directly, there remains a fundamental difficulty in reconciling a finding that Google was not a publisher (whether primary or secondary) with the broad ground on which Morland J considered in 1999 in Godfrey v Demon Internet that Demon Internet was a publisher of Usenet newsgroups hosted by it: that whenever there was a transmission of a defamatory posting from the storage of the defendant’s news server, the defendant was a publisher of that posting.
At first instance Eady J held that Google was not a publisher even after notification of the existence of a defamatory comment to a blog that it hosted. He likened Google to the owner of a wall on which people chose to inscribe graffiti, for which the owner was not responsible.
The Court of Appeal preferred to think of Google as more like the provider of a notice board: one for which, moreover, Google provided a blogger with design tools for his part of the notice board and facilities for displaying advertisements alongside notices; and, according to the Court of Appeal most importantly, Google provided the notice board on terms of its choice and could readily remove or block access to any notice which did not comply with those terms.
As such Google’s blog platform fell within the scope of the reasoning of Byrne v Deane. In that case from the 1930s an anonymous defamatory notice was affixed to a wall in a golf club and remained there after it was drawn to the attention of the golf club’s secretary. The golf club proprietor and the secretary were held to have published the notice after notification, on the basis that by failing to remove it they had made themselves responsible for its continuing presence.
Google argued that the vast difference in scale between the Blogger set-up and the small club-room in Byrne v Deane made such an inference unrealistic and that nobody would view a comment on a blog as something with which Google had associated itself or for which it had made itself responsible by taking no action to remove it after notification of a complaint.
In the event that it was held to have published the statement Google invoked the statutory ‘secondary publisher’ defence under Section 1 Defamation Act 1996. This defence has three elements: that the defendant:
(a) Was not the author, editor or publisher of the statement complained of. Each of these has specifically defined meanings. In particular a ‘publisher’ is someone whose business is issuing material to the public. This is completely different from a publisher at common law as discussed above.
(b) Took reasonable care in relation to its publication. This provision creates the notorious ‘Catch 22’: how can one take reasonable care without becoming an editor under S 1(a)?
(c) Did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
Eady J considered that by ‘effective control’ it was likely that the draftsman had in mind effective day-to-day control rather than the possibility of intervention in reliance on a contractual term about the permitted content of a web page.
The Court of Appeal agreed with Eady J. The existence of a contractual term about the content of blogs was not sufficient to give Google effective control over the person who posted the defamatory comments.
While the distinction between S1(3)(c) and S1(3)(e) is by no means clear and they may possibly overlap, the focus on S1(3)(e) for a blogging platform is mystifying.
For the period prior to notification the Court of Appeal agreed with Eady J that Google would if necessary have a defence under S1. There was no basis for concluding that Google had not taken reasonable care in relation to the publication (S1(1)(b)), or that it knew or had reason to believe that what he did caused or contributed to the publication of a defamatory statement (S1(1)(c)).
For the period after notification the Court of Appeal agreed with Eady J that Google had taken reasonable care in relation to the continued publication of the comments. Unlike in Godfrey v Demon Internet, where Demon Internet had taken no steps at all after notification, Google had passed on the complaint about the comment to the blogger.
As regards common law publication and Section 1 of the 1996 Act, the upshot of the Court of Appeal’s decision is that for a blog platform to pass a defamation complaint back to the blogger is not necessarily sufficient to avoid liability. It may still be at risk of becoming a publisher at common law and of being unable to rely on the 1996 Act.
However the Directive does not provide a complete defence to proceedings, since it does not prevent a claim for an injunction. A platform that is keen to remove itself completely from initiated proceedings will still, therefore, have an incentive to remove allegedly defamatory material even if it is not fixed with knowledge of illegality.
Apple has lost its High Court appeal against the UK ruling that Samsung had not infringed its design rights. In early July 2012, a UK court ruled that Samsung had not infringed upon the design of the iPad with its own Galaxy Tab device. Judge Colin Birss told Samsung that its Galaxy Tab was “not as […]
A landmark patent law decision has ordered Samsung Electronics to pay Apple Inc. $1.05 billion for copying Apple’s cutting edge technology. Emerald Publishing’s Ian Jones looks at the impact this ruling may have on innovation and competition both for consumers and the mobile technology industry. I first declare my interest in the Apple v Samsung […]