The FCA – Transformation to Assertive Supervision
Tamiz v Google Inc is the latest in a series of cases in which individuals have sought damages from Google in respect of allegedly defamatory material published about them on its ‘Blogger.com’ platform.
Google’s usual policy for dealing with such complaints is to refuse to take sides, awaiting a court order before taking action. This approach has led to cases such as Tamiz, in which defendants have sued Google directly after it has denied takedown requests.
A safe harbour for providers of data storage…
In Tamiz, Google relied on the protection, or ‘safe harbour,’ contained in s.19 of the Electronic Commerce (EC Directive) Regulations 2002/2013.
S.19 gives providers of ‘storage of information’ (i.e. providers of conduits for information, who are not active publishers) a complete defence against claims for damages and criminal sanctions brought in respect of unlawful activity conducted, or unlawful information contained, on their servers. In order to avail itself of the defence, the storage provider needs to show that it did not have ‘actual knowledge of unlawful activity’ being conducted and was not aware of ‘facts or circumstances’ that should have made it apparent to it that it was.
The legal argument Google successfully relied on in Tamiz is that a mere complaint by an individual about posted content posted is not enough to make a storage provider aware of ‘unlawful activity’. Without taking the complaint at face-value the service provider cannot conclusively decide whether content is or is not defamatory, and therefore cannot have the sufficient awareness of ‘unlawful activity’ that would require it to remove it.
The judgement represents a continuation of the UK Courts’ tendency to protect providers of online platforms for free speech and data transfer from liability for the acts of users. It should provide reassurance to ‘storage providers’ that, so long as they are not actively publishing or promoting the material, they need not fear complaints about user generated content (UGC), nor feel obliged to act as adjudicator where the truthfulness of content is disputed.
…but what about moorings for pirates?
It is difficult to read s.19 without thinking of the ongoing troubles of Kim Dotcom, the now notorious founder of Megaupload.com.
Given that s.19 can be used as a shield against both civil and criminal proceedings in the UK, it is interesting to speculate whether Dotcom would be under house arrest (for online piracy charges brought against him by the US authorities) had he based his operation within the EU and been UK resident.
After all, would he not be entitled to argue that his organisation was unable to determine whether the materials uploaded by users infringed third party copyright or would that be considered too disingenuous?
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