In Richardson v Facebook  EWHC 3154 (QB) Mr Justice Warby dismissed the claimant’s appeals in two separate but similar claims for defamation and breach of Article 8 ECHR. One claim was brought against ‘Facebook’ and the other against Google UK Ltd.
The claims related to content published on Facebook and Google’s Blogger services, specifically a fake profile and a blogpost, both of which the Claimant said were defamatory of her and infringed her right to a private life. The Claimant sought substantial pecuniary and non-pecuniary damages. Unfortunately in both instances the Claimant had failed to heed the warnings of the defendants’ solicitors that neither Facebook UK Limited nor Google UK Limited were the entities responsible for the publication of content on either of the platforms. The claimant proceeded to sue Google UK Limited and Facebook UK Limited (described as ‘Facebook’ on the claim form) in any event.
On 24 and 26 June 2015 both claims were dismissed by Master Kay QC on a number of grounds. The Claimant appealed to Warby J and, inter alia, sought a reference to the European Court of Justice. She placed reliance on the ‘right to be forgotten’ decision in Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (Case C-131/12), wrongly suggesting (1) it bound subsidiaries of parent companies that were online publishers and (2) liability for publication automatically arose in defamation claims (the decision in Google Spain held that Google was a ‘data controller’ for the purposes of data protection law). The Claimant also sought to argue that Facebook was a ‘hybrid public authority’ giving her a standalone Article 8 ECHR claim, an argument the judge found ‘clearly absurd’. Warby J refused the reference to the ECJ; no interpretation of European law was required regarding the Google Spain issue. In respect of the Article 8 issue the Claimant had seemingly confused EC and ECHR law.
It was unnecessary to consider prospective defences/issue of limitation, section 1 of the Defamation Act 1996 and sections 5 and 10 of the Defamation Act 2013. This was because the claimant was unable to establish that the defendants were publishers of the material under the common law. Google’s Blogger service was owned and operated by Google Inc – a corporation based in Delaware, USA. Facebook’s online platform was run by Facebook Inc and Facebook Ireland Limited. The UK subsidiaries were not involved in the publication of the relevant content. As such, the claim fell at the first hurdle. In short, the Claimant had sued the wrong people.
Large online platforms such as Google and Facebook deal with tens of thousands of complaints everyday. It is not uncommon for complainants to be unhappy with response times and/or the content of responses. Slow/stock responses or general denials of liability can understandably rile those who are already aggrieved at having been defamed, harassed or abused online. Many people, particularly on this side of the Atlantic, feel that the online giants should be doing more, particularly given the resources at their disposal and because it is their platforms which are being used as conduits for the mischief.
Richardson v Facebook serves as a warning for litigants in person tempted to ‘have a go’ themselves, even where they are intelligent and capable of putting together sophisticated arguments (as the judge acknowledged in this case). The Claimant is presumably now on the wrong end of substantive cost orders.
Prospective claimants need to understand that it is not simply a case of suing the correct entity. Whilst there are some instances in which platforms such as Google or Facebook might be liable as publishers under the common law after they have been put on notice, as recognised in Tamiz v Google Inc  EWCA Civ 68, this is subject to a number of exceptions/defences. Section 10 of the Defamation Act 2013 states that the Court will not have jurisdiction to consider a claim against a party who is not “author”, “editor” or “publisher” of content (as defined under the Defamation Act 1996) unless it is satisfied it is not “reasonably practicable” to bring a claim against such a party. Secondly, a platform may seek to invoke the procedures governed by section 5 of the Defamation Act 2013 which if done properly will provide a defence. Thirdly a platform may rely on the section 1 of the Defamation Act 1996/innocent dissemination defence and/or the ‘hosting’ defence under regulation 19 Electronic Commerce (EC Directive) Regulations 2002. Broadly-speaking if platforms are not on proper notice of the unlawful content then no liability will arise. Even where they are on notice they will have a reasonable period of time to take action before they incur liability. Platforms will also be able to rely on the more general defences available in defamation claims and put the claimant to proof on the need to show serious reputational harm. So whilst there is a good argument that platforms should be held responsible in certain situations, these situations may not arise as often as one might initially think.
This is a very different state of affairs to the prospective liability of search engine operators such as Google Inc under data protection laws, as recognised in Google Spain.
On a point of note for practitioners, Warby J acknowledged that the application of section 8 of the Defamation Act 2013 (the ‘single publication rule’) was open to argument in respect of online publications that first occurred prior to the commencement of the Act. In other words, there is a debate as to whether the one year limitation period began on the day the article was first published if this was before 1 January 2014 or whether the ‘limitation clock’ started on the date of the first publication after 31 December 2013 (as section 16(6) of the Defamation Act 2013 would appear to suggest).
This post was originally published on the Brett Wilson LLP blog and is reproduced with permission and thanks