Factual and Procedural Background
The Appellant alleges that eight specific comments posted on a blog hosted by the Defendant's blogging platform were defamatory. The Defendant is a corporation registered in Delaware, operating a blogging service that allows users worldwide to create and host blogs. The disputed comments were made on a blog named "London Muslim" between 28 and 30 April 2011. The Appellant's letter of claim was received by the Defendant in early July 2011. After subsequent communications, the Defendant forwarded the complaint to the blogger on 11 August 2011, and the blogger voluntarily removed the comments on 14 August 2011.
The Appellant sought to bring a libel claim against the Defendant for publication of the allegedly defamatory comments prior to their removal. Permission was initially granted to serve the claim form on the Defendant in California. However, the trial judge declined jurisdiction and set aside the permission for service out of jurisdiction. The judge also found that a related company had been improperly joined and held there was no triable claim against it; this latter finding was not appealed.
Legal Issues Presented
- Whether there is an arguable case that the Defendant was a publisher of the defamatory comments.
- If the Defendant was a publisher, whether it would have an unassailable defence under section 1 of the Defamation Act 1996.
- Whether any potential liability was so trivial as not to justify the maintenance of the proceedings.
- Whether the Defendant would have a defence under regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, if otherwise necessary.
Arguments of the Parties
Appellant's Arguments
- The Defendant should be regarded as a primary publisher of the defamatory comments, liable irrespective of knowledge or fault, due to its control over the blogging platform and related advertising service.
- The Defendant exercises control over bloggers and commenters and thus is responsible for defamatory content posted on the platform.
- The Defendant’s role is not passive; it facilitates publication actively and should be liable as a primary or at least secondary publisher.
- The principles of vicarious liability and agency apply, rendering the Defendant liable for defamatory content posted by users.
- The trial judge’s reliance on certain precedents was misplaced or conflated different legal principles, particularly concerning strict liability for publication and the distinction between primary and secondary publishers.
Defendant's Arguments
- The Defendant is not a publisher at common law of the defamatory comments, either before or after notification, because it plays a passive, facilitating role without editorial control.
- It operates under a policy that respects freedom of expression and only removes content found libellous by a court or after notification, consistent with US law.
- Upon notification, the Defendant took reasonable care by forwarding the complaint to the blogger and did not assume responsibility for the content.
- It does not have effective control over the bloggers or commenters, and there is no agency or employment relationship.
- Even if considered a secondary publisher, it has a statutory defence under section 1 of the Defamation Act 1996 for the period prior to notification and acted reasonably after notification.
- The potential liability period was so short and the damage so trivial that the proceedings should not be maintained.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 |
Principle that trivial or minimal publication within jurisdiction does not justify maintenance of proceedings; balancing freedom of expression with protection of reputation. |
Applied to conclude that the limited period of potential liability and minimal damage made the claim disproportionate and justified refusal of jurisdiction. |
| Smith v ADVFN Plc [2008] EWHC 1797 (QB) |
Distinguishing "mere vulgar abuse" from defamatory statements. |
Used to support the classification of some comments as non-defamatory vulgar abuse, while identifying three comments as arguably defamatory. |
| Clift v Clarke [2011] EWHC 1164 (QB) |
Similar to Smith, regarding the threshold for defamatory meaning. |
Supported the trial judge’s assessment of the defamatory nature of the comments. |
| Bunt v Tilley [2007] 1 WLR 1243 |
Definition of publication liability for internet service providers; requirement of knowing involvement or assumption of responsibility. |
Found the Defendant’s role as a passive facilitator, not a publisher, before notification; court considered but ultimately disagreed with full analogy post-notification. |
| Emmens v Pottle (1885) 16 QBD 354 |
Legal responsibility requires awareness or assumption of responsibility for publication. |
Supported the view that passive instrumental roles do not amount to publication liability without knowledge. |
| Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 |
Distributors liable only if they knew or ought to have known of defamatory content. |
Applied to conclude Defendant could not be liable before notification. |
| Bottomley v FW Woolworth and Co Ltd (1932) 48 TLR 521 |
Distributor not liable if no knowledge or negligence in failing to detect defamatory content. |
Supported the Defendant’s lack of liability before notification. |
| Byrne v Deane [1937] 1 KB 818 |
Liability for publication can arise from acquiescence or failure to remove defamatory material after notice. |
Key precedent for holding Defendant potentially liable as publisher after notification by allowing material to remain. |
| Godfrey v Demon Internet Ltd [2001] QB 201 |
ISP liable for defamatory postings after notification if it fails to remove them. |
Used to illustrate circumstances where liability arises after notification and failure to act. |
| Davison v Habeeb and Others [2011] EWHC 3031 (QB) |
Arguable case that a blogging platform may be a publisher after notification; analogy to noticeboard controlled by Defendant. |
Supported the appellant’s position that the Defendant might be liable post-notification for continued publication. |
| Ladd v Marshall [1954] 1 WLR 1489 |
Criteria for admitting fresh evidence on appeal. |
Applied to refuse admission of new evidence as it could have been obtained earlier and was not decisive. |
| Milne v Express Newspapers [2005] 1 WLR 772 |
Interpretation of "knew or had reason to believe" in defamation context includes recklessness. |
Referenced in assessing whether Defendant had knowledge or reason to believe it contributed to publication after notification. |
Court's Reasoning and Analysis
The court carefully analysed whether the Defendant could be regarded as a publisher of the defamatory comments hosted on its blogging platform. It distinguished the Defendant's role from that of primary publishers such as authors or editors, noting the absence of editorial control and the independence of bloggers and commenters. The court acknowledged that before notification of a complaint, the Defendant's role was passive and facilitative, consistent with established precedents that internet service providers are not publishers absent knowledge or control.
However, the court diverged from the trial judge's analogy comparing the Defendant to an owner of a graffiti-covered wall, instead favouring the analogy of a gigantic noticeboard controlled by the Defendant. This analogy supported the proposition that after notification of defamatory content, the Defendant could be inferred to have associated itself with the continued publication by failing to remove the material within a reasonable time, thus becoming a publisher for that limited period.
Regarding statutory defences under section 1 of the Defamation Act 1996, the court agreed that the Defendant was not a "commercial publisher" and thus qualified for the defence if it took reasonable care and lacked knowledge or reason to believe it caused or contributed to publication. The court found the Defendant took reasonable care by forwarding the complaint to the blogger, though the response was somewhat delayed. The court expressed doubts about whether the Defendant could satisfy the knowledge requirement post-notification, given the inference of responsibility arising from failure to act.
Ultimately, the court considered whether the potential liability period and damage were sufficient to justify continuation of proceedings. Applying the principles from Jameel (Yousef), the court concluded that the brief period between notification and removal and the likely trivial damage rendered the claim disproportionate. Therefore, the court upheld the decision to decline jurisdiction and set aside permission for service out of jurisdiction.
The court found it unnecessary to consider the defence under regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 due to the dismissal of the appeal.
Holding and Implications
The court UPHELD the trial judge’s decision to decline jurisdiction over the Defendant and set aside the order permitting service out of jurisdiction.
The direct consequence is that the Appellant’s libel claim against the Defendant in this jurisdiction cannot proceed. The decision reflects a balancing of the limited period of potential liability and minimal damage against the resources required for litigation, reinforcing the principle that trivial claims should not be maintained. No new precedent was established beyond the application of existing common law and statutory principles to the facts of this case.