Defamation / Reputation, Privacy, Data Protection and Retention
Don Domingo v. Google Spain
Closed Mixed Outcome
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The High Court of Northern Ireland allowed a British politician to bring a lawsuit outside its jurisdiction against Google, after the company failed to expeditiously remove a video posted on YouTube by a Northern Irish political activist. Though William Frederick Frazer posted 4 videos, the one in question was deemed “obviously defamatory,” violated data protection law, and constituted harassment; Galloway argued that he had the right to sue Google because the video remained visible for 3 weeks “pending review” after having been flagged. Before determining that the suit could proceed outside Northern Ireland, the Court reasoned that Galloway had an “arguable case” because the period of time in which the video was pending review was unreasonable given the nature of the case, that Google could be found responsible for the publication of personal data, and that the company was also likely liable for harassment.
The applicant, George Galloway, a prominent British politician, brought suit with regard to several YouTube videos that were posted by the defendant, William Frederick Frazer, a political activist from Northern Ireland. Galloway’s lawyers brought legal action against Frazer over the videos on various grounds including defamation, the misuse of private information, harassment and malicious falsehood. They also brought legal action against Google Inc., the owner of YouTube, for failing to remove the videos expeditiously. One of the videos had been immediately removed but another had stayed up for up to three weeks before first being blocked for viewers in Northern Ireland, and then removed completely. In this video, described by the Court as “obviously defamatory”, Galloway was called a “tramp” who supports and “encourages terrorism” including Islamic terrorists who “behead American citizens”. [para. 22]
As the proceedings got underway, Galloway obtained permission to serve proceedings on Google Inc. at its registered office in Delaware, outside of the jurisdiction of Northern Ireland. Google appealed to the High Court of Northern Ireland, seeking to set that decision aside.
The Court took note of the two main mechanisms YouTube had for dealing with material which it found to be unlawful: (a) the flagging system; and (b) legal removal. Flagging involves users flagging a video as inappropriate. YouTube then reviews the video and decides whether it violates its policies and community guidelines. Legal removal on the other hand applies when there is breach of copyright or defamation. There had not been a full exposition of these methods before the Court and Mr Justice Horner noted that he was not certain about exactly how YouTube carried out its reviews or the amount of resources devoted to these processes. He nevertheless opined that as a profit-making company, Google could be expected to devote sufficient resources to ensure that it does not permit YouTube to be misused to upload defamatory videos which then remain available to the public for unreasonable periods of time. He described one of the videos complained of as “obviously defamatory”, yet it had remained up for three weeks pending review. [para. 22]
The Court recalled that in order to allow a plaintiff to serve proceedings on a foreign company outside of the jurisdiction, there had to be “a good arguable case” [para. 15], and examined whether such a case existed in respected of several potential causes of action.
With regard to defamation, the Court examined whether the fact that Google had taken 23 days after notice of one of the defamatory videos was too long. The Court held that to determine what constitutes a reasonable period of time, it should consider the nature of the allegations made. The Court noted that “these were on any view vile and scurrilous allegations made against a sitting MP… a court, on the limited information available to it, may well conclude that Google should have acted more swiftly given the serious and alarming nature of the libel”. [para. 67]
The Court went on to consider whether there was a good arguable case under data protection law. It considered whether Google, in operating YouTube, acted as a data controller or merely as a data processor for the purposes of the Data Protection Act 1998. The Court noted that this was a controversial issue in a developing area of law that would be heavily dependent on the facts of the case as interpreted by the trial judge. Describing some of the personal data as sensitive, the Court considered that “Google will not find it easy to defend this claim if it is found to be a data controller” [para. 82] and held that the plaintiff had a good arguable case in relation to the publication of sensitive personal data.
Galloway had also complained that the speech in the videos constituted harassment under the Protection from Harassment (NI) Order 1997, and asserted that Google was also liable for harassment by failing to remove this material. The Court held that in making the video available for 23 days, Google knew or should have known that it would harass the plaintiff and engage in a “course of conduct” analogous to that of a person who keeps publishing newspaper articles or blogs which are designed to degrade or upset the victim. [para. 87] A good arguable case existed in relation of this, as well. The other causes of action were abandoned by the plaintiff.
The Court concluded by holding that it would grant leave to serve Google, Inc., out of the jurisdiction in relation to one video which had been kept online for more than three weeks, on grounds that the plaintiff had a good, arguable case for libel, harassment and breach of the Data Protection Act 1998.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court allowed Google Inc. to be served out of the jurisdiction in relation to only one video out of four complained of.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Although High Court decisions are not binding, this is nevertheless persuasive precedent. As the Court held, this is a developing area of law. The Court held that Google Inc. could be served out of the jurisdiction because the plaintiff had a good, arguable case for libel, misuse of personal data and harassment in regard to one video which the judge described as “obviously defamatory” and which had been left online for more than three weeks whilst YouTube’s lawyers reviewed it. Coming on the heels of various other cases on the liability of Internet companies, many of which are quoted in the judgment, it further indicates the direction in which the law is developing.
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