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UK ruling on Google's liability poses threat to free speech

(ARTICLE 19/IFEX) - Yesterday, the Court of Appeal of England and Wales ruled that Google could be liable as publisher for comments posted on its Blogger platform if it fails to act promptly in response to notice of a complaint.

ARTICLE 19 is alarmed by the judgment, which is a serious step back for free speech online.

“This a hollow victory for Google. They may have won on the day, but the court's judgment effectively endorses a problematic 'notice and takedown' system, which encourages intermediaries like Google to remove potentially defamatory material immediately upon notification despite the fact that the material complained about may not be unlawful. This creates a worrying chilling effect on freedom of expression, as intermediaries might censor perfectly legitimate speech” said Agnes Callamard, Executive Director of ARTICLE 19.

“This ruling seems particularly unfortunate at a time where some provisions in the Defamation Bill are trying to redress the inherent unfairness of 'notice-and-takedown' rules and the EU is reviewing possible alternatives to this system” Callamard added.

The Court of Appeal overturned an earlier ruling of the High Court from March 2012, which found that Google should not be considered as a publisher because of its passive role as a platform provider.

The Court of Appeal held a different view and held that if Google allowed defamatory comments to remain on a blog after it had been notified of those comments, it might become responsible for their publication.

Key to the court's reasoning was the fact that Google makes the Blogger platform available on terms of its own choice and that it can remove or block access to any notice that does not comply with those terms.

Although the court ultimately decided to dismiss the overall appeal as the defamation comments were considered too trivial, ARTICLE 19 finds the decision a serious setback for free speech online.

ARTICLE 19 is also disappointed that the Court did not hear or refer to freedom of expression during this case, a right which is given protection through the Human Rights Act.

Facts of the case

Mr Tamiz is a former Conservative party local council candidate and law student.

In early July 2011, Tamiz complained to Google about eight comments posted on the London Muslim blog, which he said were defamatory of him. The comments had been posted between 28 and 30 April 2011 and included false claims that Mr Tamiz was a drug dealer and a thief.

On 11 August, after further email exchanges, Google passed on the complaint to the blogger. On 14 August 2011, some five weeks after the initial complaint to Google, all the comments complained of had been removed by the blogger.

Further information

The Court of Appeal judgment is available here

The High Court judgment is available here

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