One of the things about running a blog that invites comment is that people do comment. And if those comments are defamatory, the blog host runs the risk of being held responsible. Under EU rules (which have been incorporated into English law by the snappily titled Electronic Commerce (EC Directive) Regulations of 2002 – see here) service providers are given some protection. Where they act as “a mere conduit” for information or simply host information, the 2002 Regulations offer the service provider a defence against claims for defamation. Furthermore, the 2002 Regulations do not require service providers to pro-actively monitor content. In fact, I have previously advised clients that they should not do anything that suggests that they might be assuming responsibility for website material submitted by third parties. I’ve said this because the defences that are available under the 2002 Regulations are based on the assumption that the service provider is not aware of the content and has no control over the material. Once a service provider is made aware of the content, the service provider must act “expeditiously” to remove the material or they will lose the benefit of the defence.
The Italian courts have recently taken the concept of ‘control’ rather further than I had in mind. Google has been found guilty of defamation because of the suggestions made by its autocomplete search function. The case was brought by an individual (his name has not been released) who discovered that entering his name into Google produced suggestions for further search terms such as “con man” and “fraud”. The individual asked Google to rectify this but had no luck. He went to court and won. The association of his name with the suggested search terms was enough in Italian eyes to amount to defamation. Google argued that it was not responsible for the suggestions because they arose automatically – algorithms monitored the popularity of other users’ search requests and ranked the suggestions accordingly. The court rejected this. Google controls the algorithms that were used.
Could it happen here? Your correspondent has just spent a happy few minutes tempting Google to commit defamation by autosuggestion to no avail. Possibly the autocomplete algorithms have been altered or possibly your correspondent lacks imagination.
But, yes, if the association of a user’s search query with a suggested search term is sufficient to be treated as defamatory, it could happen here. Based on the facts as we know them, Google would probably not be able to rely on the service provider’s defence set out in the 2002 Regulations. This is partly because Google was told of the situation and did nothing to rectify it. There is a raft of case law that is testament to the dangers of this sort of inactivity. Partly also, because judges in previous cases in England have taken the view that any intervention of any sort (even simply correcting grammar or spelling) takes the situation beyond the ‘mere storage’ protection offered under the 2002 Regulations.
Bearing this in mind, if you do comment, please don’t be rude about anyone else. If you do, we will quickly remove your posting to protect the sensibilities of your victim but also to avoid having to pay defamation damages for something somebody else said!