Reposted from DLA Piper’s Media & Sport Group Bulletin

Editorial Team: Nick FitzpatrickDuncan Calow and Patrick Mitchell

The High Court has ruled that Google did not have “actual knowledge” of defamatory material where complaints were not “sufficiently precise and well substantiated”.

On 25 November 2011 the High Court ruled in favour of Google; setting aside an order that permitted the US company to be served out of the jurisdiction in defamation proceedings. The Court ruled that the claimant, former UK intelligence adviser Andrea Davison, had failed to show a real and substantial tort within the jurisdiction or that Google had actual knowledge of unlawful activity on the blog that it hosted.

Davison claimed she had been libelled in articles published on a blog named The Palestine Telegraph, which is hosted on Blogger.com, a platform provided by Google. Davison complained to Google about the material, which she claimed suggested she had been involved in fraudulent activities, but following an assertion from the blogger that the allegations were true, Google did not immediately delete them. Davison commenced proceedings against both the author of the blog and Google. Google denied liability on the basis that it was not the publisher of the material and it did not have not have actual knowledge of unlawful activity or information. Google argued further that there was no substantial tort within the jurisdiction and applied to the High Court to set aside the order against it.

Judge Parkes QC considered the hosting defence in Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, under which a web host can avoid liability for unlawful material if it did not have “actual knowledge of unlawful activity or information” and further if it “acts expeditiously to remove or disable access to the information” upon obtaining such knowledge.

The Court concluded that Davison had no real prospect of establishing that Google had actual knowledge of any unlawful activity or had been aware of facts or circumstances from which it would have been apparent that the activity or information was unlawful. Although Google had received Davison’s complaint, notice will only be effective when such complaints or allegations are “sufficiently precise and well substantiated”. In addition to this, Google had been in no position to adjudicate as it was faced with conflicting claims from Ms Davison and the blogger as to the truth of the allegations.

In considering whether Ms Davison had suffered a real and substantial tort, Judge Parkes QC sought to balance the right to freedom of expression against the protection of individual reputation and found that allowing the claim to proceed would result in an abuse of process. The material complained of had been read by a very small number of people who were not known to Ms Davison and any damage she may have suffered was not substantial.

While the judgment may be welcomed by website hosts concerned with their potential liability for blogs and posts, it does not set a precedent which will allow complaints to be ignored. Judge Parkes QC rejected Google’s claim that there was no good arguable case that it was the publisher of the material complained of and noted that a different conclusion could be reached on different facts and where, for example, a complaint was sufficiently precise and well substantiated or where the author of the defamatory material had made no attempt to defend what had been written, the defendant may be deemed to have actual knowledge.