Factual and Procedural Background
The Plaintiff, acting in person, alleges defamation arising from a series of internet articles published on websites hosted by the fifth Defendant, a US-based corporation providing the Blogger.com platform. The Plaintiff claims to have been an intelligence adviser and gave evidence in secret inquiries related to arms supply to Iraq. After retirement, she engaged in voluntary work and now runs a small business. The defamation claim concerns articles published on a blog hosted on Blogger.com by the second Defendant, with contributions from the third Defendant. The Plaintiff obtained permission from Master McCloud on 20 January 2011 to serve the fifth Defendant out of the jurisdiction in the United States, relying on tortious damage sustained within the jurisdiction.
The fifth Defendant applied to set aside that order, challenging the court's jurisdiction and arguing that the Plaintiff failed to disclose a real and substantial tort within the jurisdiction and that the fifth Defendant was not a publisher of the defamatory material. The Plaintiff's claim also involves other Defendants, some of whom settled and others who are defending the action.
Legal Issues Presented
- Whether the Plaintiff has established a real and substantial tort within the jurisdiction sufficient to justify service out on the fifth Defendant under CPR Practice Direction 6B paragraph 3.1(9).
- Whether the fifth Defendant is a publisher at common law of the defamatory material hosted on its Blogger.com platform.
- Whether the fifth Defendant is entitled to immunity from liability under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (implementing Article 14 of Directive 2000/31/EC).
- Whether notification of defamatory content to the fifth Defendant gives rise to liability by consent or acquiescence.
- Whether the court should exercise jurisdiction over the fifth Defendant or decline it.
Arguments of the Parties
Fifth Defendant's Arguments
- The Plaintiff failed to establish publication of defamatory words to a substantial number of people within the jurisdiction, citing Jameel v Dow Jones & Co Inc and Al-Amoudi v Brisard.
- The fifth Defendant is not a publisher at common law but a facilitator of content on Blogger.com, which is a platform allowing users to publish independently.
- Liability requires a mental element of knowing involvement in publication; the fifth Defendant is unaware of the content until notified and cannot adjudicate on its lawfulness.
- The fifth Defendant is entitled to rely on the statutory defence under Regulation 19 of the Electronic Commerce Regulations 2002, as it lacks actual knowledge of unlawful information and acts expeditiously upon notification.
- Holding the fifth Defendant liable would infringe Article 10 rights to freedom of expression and interfere with the availability of the platform.
- The Plaintiff’s notification was insufficiently precise and substantiated to fix actual knowledge of unlawful content.
Plaintiff's Arguments
- The Plaintiff alleges the fifth Defendant is the publisher of the defamatory material by virtue of owning and controlling Blogger.com and by publishing, editing, distributing, or promoting the content.
- She contends that the fifth Defendant actively promotes the second Defendant's blog and selectively removes articles, evidencing editorial control.
- The Plaintiff claims notification to the fifth Defendant provided actual knowledge of unlawful defamatory content, given the outlandish nature of the allegations.
- She disputes that the Blogger service is not remunerated, pointing to advertising revenue shared between the fifth Defendant and bloggers.
- The Plaintiff asserts that the fifth Defendant should not be immune under Regulation 19 due to actual knowledge and failure to remove defamatory material.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Jameel v Dow Jones & Co Inc [2005] QB 946 |
Test for real and substantial tort; requirement of substantial publication within jurisdiction. |
Applied to assess whether publication to five individuals within jurisdiction sufficed; court found it insufficient to establish real and substantial tort. |
| Al-Amoudi v Brisard [2007] 1 WLR 113 |
No presumption that internet publication equates to substantial publication within jurisdiction. |
Supported the requirement for proof or inference of actual readership within jurisdiction. |
| Godfrey v Demon Internet Ltd [2001] QB 201 |
ISP liable as publisher after notification of defamatory material. |
Used as analogy for possible liability of fifth Defendant after notification. |
| Day v Bream (1837) 2 Mood & R 54 |
Strict liability for publication unless ignorance of contents proven. |
Demonstrated principle of innocent dissemination defence. |
| Emmens v Pottle (1885-86) LR 16 QBD 354 |
Defence of innocent dissemination where no knowledge or negligence of defamatory content. |
Clarified mental element required for publisher liability. |
| Byrne v Deane [1937] 1 KB 818 |
Liability arises from consent or acquiescence in continued publication after notification. |
Applied to assess fifth Defendant's potential liability after notification. |
| Bunt v Tilley [2007] 1 WLR 1243 |
ISPs as mere conduits not liable for third party content; importance of mental element. |
Distinguished ISP conduits from website hosts like Blogger.com; informed analysis of mental element. |
| Metropolitan International Schools v Designtechnica Corp [2011] 1 WLR 1743 |
No liability for search engine operator for defamatory search snippets; role of human intervention and mental element. |
Used to analogize fifth Defendant’s role; held that liability depends on knowing involvement. |
| Kaschke v Gray [2011] 1 WLR 452 |
Actual knowledge of unlawful information requires realistic prospect of proving awareness of unlawfulness. |
Supported conclusion that mere notification insufficient to establish actual knowledge. |
| L'Oréal SA and others v eBay International AG and others (Grand Chamber, 12 July 2011) |
Clarified scope of actual knowledge and awareness under Article 14 of Directive 2000/31/EC. |
Interpreted notification requirements and diligence expected of service providers; endorsed consideration of notification quality. |
| NML Capital Ltd v Republic of Argentina [2011] UKSC 31 |
Sanctioned amendment of Particulars of Claim after permission to serve out. |
Supported procedural amendment in Plaintiff’s claim. |
Court's Reasoning and Analysis
The court first addressed whether the Plaintiff had demonstrated a real and substantial tort within the jurisdiction to justify service out on the fifth Defendant. Applying the principles from Jameel and Al-Amoudi, the court found that publication to only five individuals within the jurisdiction, none of whom knew the Plaintiff, was insufficient to establish a real and substantial tort. Although it was arguable that those five individuals read the defamatory material, the limited extent of publication and the absence of any meaningful vindication weighed against continuing the claim against the fifth Defendant.
Next, the court considered whether the fifth Defendant was a publisher at common law. Drawing on authorities such as Godfrey v Demon, Bunt v Tilley, and Metropolitan International Schools, the court recognized that the fifth Defendant provides and hosts Blogger.com, a platform allowing users to publish content independently. The court accepted that the fifth Defendant is not a mere conduit like an ISP but is more akin to a notice board operator with the ability to remove content upon notification. The court held that the fifth Defendant could be considered a publisher after notification of defamatory content, as failure to remove material may amount to consent or acquiescence under Byrne v Deane.
The court then examined the applicability of Regulation 19 of the Electronic Commerce Regulations 2002, which provides a defence to service providers who lack actual knowledge of unlawful content and act expeditiously upon notification. The court analyzed the Plaintiff's notifications and the fifth Defendant's responses, concluding there was no realistic prospect that the Plaintiff could prove the fifth Defendant had actual knowledge or was aware of facts making the unlawfulness apparent. The conflicting claims between the Plaintiff and the second Defendant, and the fifth Defendant's inability to adjudicate on truth or lawfulness, supported this conclusion.
Balancing the Plaintiff's rights under Articles 6 and 8 of the European Convention on Human Rights with the fifth Defendant's Article 10 rights, the court emphasized the importance of protecting freedom of expression and the practical difficulties of imposing liability on a US-based platform operator. The court acknowledged the Plaintiff's remedies against the second and third Defendants, who are within the jurisdiction and defending the action.
Ultimately, the court set aside the order permitting service out on the fifth Defendant, finding insufficient grounds to assert jurisdiction and liability against it based on the current evidence and legal principles.
Holding and Implications
The court SET ASIDE the order of Master McCloud dated 20 January 2011 that granted the Plaintiff permission to serve the Claim Form on the fifth Defendant outside the jurisdiction.
The direct effect is that the Plaintiff cannot pursue her defamation claim against the fifth Defendant in this jurisdiction. However, the Plaintiff retains remedies against the second and third Defendants, who are within the jurisdiction and defending the proceedings. The court did not establish new precedent but applied existing legal principles concerning internet publication, jurisdiction, and intermediary liability consistent with statutory and human rights frameworks.