George GallowayIn Galloway v William Frederick Frazer, Google Inc t/a YouTube and others, Mr Justice Horner in the High Court of Northern Ireland refused an application by Google Inc. (“Google”) to set aside an order granting leave to George Galloway to serve proceedings out of the jurisdiction on Google. 

The decision is set out in what the Judge himself described as a “disproportionately long” judgment concerning a claim against Google for libel, harassment, misuse of private information, unlawful data processing (and various hopeless causes of action) in relation to its failure to remove four videos from the YouTube platform. The NI Court service has provided a summary of the judgment.

The Judge commended counsel on both sides for their “enthusiasm” but commented that there had “been a uniformity of effort which has resulted in every claim, regardless of its cogency, being often afforded the same investment of time and energy.” Whilst much of this “enthusiasm” was no doubt strategic, the judgment demonstrates nicely the unnecessary complexity in this area of the law, the pitfalls of adopting a kitchen sink approach to content claims, and that “there still remains a level of uncertainty about the nature of the functions performed by these internet behemoths and what legal terms should properly be applied to the functions they perform“, as pointed out in previous posts on this blog, see here and here.

Background 

The claims were bought by George Galloway, a prominent British politician, in respect of YouTube videos posted by the first defendant, William Frederick Frazer, a Northern Ireland politician well known for his involvement in street protests, and his supporters.

The two principle YouTube videos in question were both blocked by Google after they had been posted online, but with different degrees of expedition:

  1. The first video (URL1) was posted to a YouTube account on 25 August 2014 and flagged the next day for review using the reporting tool on the YouTube website. Within 5 minutes the entire channel upon which URL1 was maintained was removed globally from YouTube because it was regarded by Google’s filters as belonging to a spam channel. It is unknown what content was captured on the video and what, if anything, infringed the claimant’s rights.
  1. The second video (URL2) was posted to a YouTube account on 23 August 2014. On 27 August 2014, a notification and take-down letter in relation to URL2 was received by YouTube and on 28 August 2014, YouTube’s Legal Support stated that the complaint in respect of URL2 had been sent for review. On 18 September 2014, YouTube Legal Support wrote to the plaintiff’s solicitors noting that the video URL2 had been blocked for viewers in Northern Ireland having been considered not to comply with local law.

URL2 apparently claimed that Galloway is a “tramp” who supports and “encourages terrorism” including those Islamic terrorists who “behead American citizens”. It was therefore obviously defamatory.

At first instance, Mr Justice Stephens granted leave to Galloway to serve proceedings on Google at its registered office in Delaware. However, having initially “kept its powder dry” at the first hearing, Google then made a “root and branch attack” [15] on the order of Mr Justice Stephens by way of appeal before Mr Justice Horner.

Leave to serve out of the jurisdiction

As with equivalent proceedings in the English courts, the question for the Court was whether the plaintiff had met the test for at least one of a number of “gateways” for service out on a defendant based outside the EU, as set out in the Northern Irish equivalent of the Civil Procedure Rules.

Injunction gateway

Mr Justice Horner found the injunction gateway to be closed to the plaintiff; URL2 had been blocked since 18 September 2014 and there was no suggestion of any risk of it being republished.   There was also no realistic prospect of any court granting any injunction in the terms sought by the plaintiff on two further videos, URL3 and URL4, which were not included in the original writ of summons and were “very much an afterthought”. The Judge considered that the injunctions applied for were far too wide and ill-defined and “hopelessly imprecise”, for example, attempting to restrain Google from harassing the claimant by “publishing any information on the internet” [57] and seeking to restrain Google from publishing unspecified libels relating to the plaintiff.

Necessary or proper party gateway

As the first defendant had been served with the proceedings (and provided an undertaking in respect of his future conduct) the precondition of this ground was met.  The Judge was also satisfied that there was a good arguable case that Google is a necessary and/or proper party to the claim and that the plaintiff enjoys a prima facie case (at least) against Google in respect of libel, harassment and for breach of the Data Protection Act 1998 (the “DPA”), for the reasons discussed below. According to the Judge, there was a real advantage in Google being before the court because should the plaintiff obtain an award of damages against both the defendant and Google, then the plaintiff could choose to enforce against Google, which would inevitably be preferable to enforcing against the defendant (who was highly unlikely to be able to satisfy any judgment for damages or costs).

Tort gateway

It is on the issue of the tort gateway that the judgment becomes interesting, as the Judge found that there was a good arguable case against Google in relation to libel, harassment, and unlawful data processing (although not Article 8 privacy) on account of the fact that Google had taken 23 days after notice of URL2 to remove it, which was arguably too long.

Defamation

In relation to defamation, the content of URL2 was clearly defamatory and the plaintiff averred that at least 4000 viewers downloaded URL2 after notification. Most, if not all, of these viewers are likely to have been in Northern Ireland (the defendant had few, if any, followers in Great Britain). The evidence established a considerable number of downloads during the 23 day period between when URL was flagged to Google and when access to viewers was blocked.

Google provided the Court with details “of the enormous amount of video footage downloaded on an hourly basis from YouTube” and asked the Court to accept that the period of just over 3 weeks from notice to take-down was sufficiently prompt to allow the defendant a “knock-out” defence under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (the “E-Commerce Regulations”).  However, the Judge did not agree that Google was guaranteed its knock-out blow, stating that in determining what was a reasonable period of time, the Court was entitled to take into account the nature of the allegations made: “these were on any view vile and scurrilous allegations made against a sitting MP… a court, on the limited information available to it, may well conclude that Google should have acted more swiftly given the serious and alarming nature of the libel” [67].

Data Protection Act 1998

The Court then had to address the difficult question of whether Google, in operating YouTube, acted as a data controller or a data processor for the purposes of the DPA. The Judge accepted that these were “controversial matters in a developing area of law which are going to be heavily dependent on the facts as found by the trial judge” [78].  However, for the purposes of service out, he found that the facts before the Court “would suggest that Google will not find it easy to defend this claim if it is found to be a data controller” [82]. It was also clear that the information contained in URL2 constituted sensitive personal data, containing information as to the plaintiff’s personal opinions and the commission or alleged commission by him of an offence.  Accordingly, the Court considered the plaintiff to have a good arguable case in respect of the publication of his sensitive personal data on URL2 by Google as a data controller.

Harassment

The plaintiff complained that the defendant’s speech as captured on URL2 caused him to feel threatened, harassed or degraded such as to constitute harassment under Article 3(1) of the Protection from Harassment (NI) Order 1997 (the Northern Irish equivalent of the Protection from Harassment Act 1997).  However, the novel element of the claim was that Google was also liable for harassment by failing to remove the harassing material in URL2 upon notice of it.  In this respect, the Court agreed that making the video available for an appreciable period of time (23 days) when Google knew or should have known that it would harass the plaintiff and distress him, constitutes a “course of conduct”: “there can be no doubt that somebody will be guilty of pursuing a course of conduct if that person keeps publishing newspaper articles or blogs which are designed to degrade and/or upset the victim.  There cannot be any practical difference between that as a course of conduct and someone who keeps posted (and fails to take down) a video which achieves exactly the same result.” [87].

Given that the other elements of the tort of harassment were met (the conduct was targeted at the claimant, calculated to cause alarm or distress and objectively judged to be oppressive and unacceptable in its social working context), the Judge was satisfied that there was a good arguable case in respect of the harassment claim, although stressed that this decision was a provisional one and that Google still remain able to adduce evidence that it did not have the necessary knowledge of the harassment: “this will involve scrutiny of the measures taken by Google to investigate the complaints when they were first made which cannot adequately be conducted by affidavit” [90].

Comment

This case provides an excellent example of the modern trend to dress up a libel claim in a multitude of different ways and the remaining uncertainties around the operation of the “hosting defence” under Regulation 19 of the E-Commerce Regulations.  The result is a highly disproportionate legal battle over a few YouTube videos which, although serious, have now been removed from the internet, albeit after a three week delay.

With jurisdiction and service now resolved, the three key points that the Court will need to consider at trial are:

  • Was 23 days in this case sufficiently “expeditious” to avail Google of a defence under Regulation 19 of the E-Commerce Regulations? If not, for what period of time is Google liable?
  • Is Google a data controller over user-generated content posted on YouTube? If so, at what point does it become liable under the DPA?
  • Does Google’s failure to remove harassing material amount to a “course of conduct” once its defence under Regulation 19 has expired? If so, for what period of time is Google liable?

In relation to the first and third of those questions, the best guidance so far as to what might constitute expedition for the purposes of Regulation 19 is the judgment of the Court of Appeal in Tamiz v Google ([2013] EWCA Civ 68) where Google managed to get away with a period of about five weeks between notice and take-down, but only on the basis that the damage caused during the period from when Google became liable to the point of take-down was so negligible that the case was struck out as an abuse of process.

The reality is that, as the Judge recognised in this case, what is reasonable or “expeditious” depends on a number of factors, including the seriousness of the allegations and the nature of the information provided by the claimant to enable the intermediary to assess the claim.  A trivial complaint that might not meet the serious harm threshold of section 1 of the Defamation Act 2013 in the UK is likely to be treated differently to, for example, an obviously false allegation of murder.  It is also relevant to consider the resources that the intermediary defendant has in place and the volume of complaints that it receives.

It is important to note that liability for damages will only apply to the intermediary for the period of culpability, not for damage caused by the immediate aftermath of the initial publication before it received notice, which in most cases will be when most of the damage occurs.  So for example, if a seriously defamatory tweet is retweeted 1000 times before Twitter is notified and removes the defamatory tweets, it cannot be held liable on defamation grounds in relation to the damage caused by the 1000 re-tweets as it will have a defence under Regulation 19.  This will raise the question in most cases as to whether the claimant should bother suing the internet intermediary for damages at all, given the risk of strike out.

In relation to Galloway’s data protection claim, there are serious doubts as to whether the E-Commerce Regulations provide any defence at all to internet intermediaries as matters of data protection are specifically excluded from the E-Commerce Regulations (see our earlier blog posts here and here and the Max Mosley case).  This raises the importance of the issue of whether (at least until the GDPR comes into force) Google can really be said to “determine the purposes” for which any personal data contained in a YouTube video is being processed, such as to be a data controller.

It is to some extent unfortunate that Google tends to be the trailblazer in most of these cases.  The danger is that all internet intermediaries, including news websites and small discussion forums and blogs, will be lumped into the same bucket of “internet intermediary”.  Google tends not to get a great deal of sympathy from judges notwithstanding the huge level of resources that it devotes to its notice and take-down procedures. This was evident in this case from the Judge’s comments:

“But the court is entitled to take judicial notice of the fact that Google is a huge corporation. It is a profit making organisation.  It has an enormous turnover and generates substantial profits.  YouTube is a major contributor to this success. Prima facie the court can reasonably expect that Google will devote sufficient resources to ensure that it does not permit YouTube to be used to allow malefactors to post vile and scurrilous calumnies that remain available for access to the public for unreasonable amounts of time” [11].

The position of a small website without the benefit of in-house lawyers might be very different.

Galloway was fortunate in this case that the Judge took the time to analyse each of his claims in detail.  He succeeded in obtaining leave to serve out despite wasting an enormous amount of time and costs running every argument he could possibly think of against a defendant that is not shy of fighting legal claims.

Ashley Hurst is a partner and Emma Cross is an associate in the media litigation team at Olswang.