QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Judge of the High Court)
| ANDREA DAVISON
|- and -
| (1) SAMEH HABEEB
(2) PETER EYRE
(3) GORDON BOWDEN
(4) THE PALESTINE TELEGRAPH NEWSPAPERS LTD
(5) GOOGLE INC.
(6) GOOGLE UK LTD
Antony White QC (instructed by Reynolds Porter Chamberlain LLP) for the Fifth Defendant
Hearing date: 26th and 27th July 2011
Crown Copyright ©
His Honour Judge Parkes QC:
The present application
The claimant's case
The fifth defendant
Real and substantial tort
Is the fifth defendant the publisher of the words complained of?
" In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant's words) responsible for "corporate sponsorship and approval of their illegal activities".
 I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn  AC 549, 562: "A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish". In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that "publication".
 Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354, 357, per Lord Esher MR.)"
Is the claim defeated by Reg.19 of the Electronic Commerce Regulations 2002?
"Any information society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition:
'at a distance' means that the service is provided without the parties being simultaneously present;
'by electronic means' means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
'at the individual request of a recipient of services' means that the service is provided through the transmission of data on individual request."
"Where an information society service is provided which consists of the storage of information provided by the recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where
(a) The service provider
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information; and
(b) The recipient of the service was not acting under the authority or control of the service provider."
"In determining whether a service provider has actual knowledge for the purposes of … regulation 19(a)(i), a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, among other things, shall have regard to –
(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c), and
(b) the extent to which any notice includes –
(i) the full name and address of the sender of the notice;
(ii) details of the location of the information in question; and (iii) details of the unlawful nature of the activity or
information in question."
A means of contact made available in accordance with Reg 6(1)(c) is a means by which the recipient of the service can contact the service provider directly and effectively. Nothing turns on that. Mr White submits, and it is not challenged, that the 'location' in (b)(ii) must mean the URL of the information.
"The editors of Gatley on Libel and Slander, 11th ed (2008) suggest that a regulation 19 defence might be much wider than a section 1 defence, the latter referring to the defendant's means of knowledge that he is contributing to the publication of a defamatory statement, the former referring to his means of knowledge that the statement is "unlawful". As they point out, a statement is defamatory even though there is a perfectly viable defence to a libel action. By contrast they suggest that where there was a defence to such an action it would be difficult to say that it was "unlawful", for example much of the law of privilege being based upon a duty to publish a defamatory statement. At a minimum they suggest that before one could say that it would be apparent to a defendant that a statement is unlawful he would need to know something of the strength or weakness of available defences. It is hard to disagree with their observation that it seems unlikely that the drafters of the Directive gave much thought to English libel law."
"Suppose, for example, that a host knows that its server contains information imputing that an individual is guilty of a serious crime, but knows no facts or circumstances bearing one way or the other on the truth or falsity of that imputation. In those circumstances, it seems likely that the host would be entitled to rely on the Regulation 19 defence. The host does not have actual knowledge that the information on its server is unlawful, and is not aware of facts or circumstances from which it is or would have been apparent that that information is unlawful."
" As the case in the main proceedings may result in an order to pay damages, it is for the referring court to consider whether eBay has, in relation to the offers for sale at issue and to the extent that the latter have infringed L'Oréal's trade marks, been 'aware of facts or circumstances from which the illegal activity or information is apparent'. In the last-mentioned respect, it is sufficient, in order for the provider of an information society service to be denied entitlement to the exemption from liability provided for in Article 14 of Directive 2000/31, for it to have been aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question and acted in accordance with Article 14(1)(b) of Directive 2000/31.
 Moreover, if the rules set out in Article 14(1)(a) of Directive 2000/31 are not to be rendered redundant, they must be interpreted as covering every situation in which the provider concerned becomes aware, in one way or another, of such facts or circumstances.
 The situations thus covered include, in particular, that in which the operator of an online marketplace uncovers, as the result of an investigation undertaken on its own initiative, an illegal activity or illegal information, as well as a situation in which the operator is notified of the existence of such an activity or such information. In the second case, although such a notification admittedly cannot automatically preclude the exemption from liability provided for in Article 14 of Directive 2000/31, given that notifications of allegedly illegal activities or information may turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality."