Felicity McMahon, a barrister at 5RB, considers the decision in Richardson v Facebook; Richardson v Google (UK) Ltd., a case which highlights the importance of identifying the correct entity to bring actions against in defamation claims.
What is the background to the claimant’s actions against Facebook and Google?
The claimant brought the action in relation to a Facebook profile and a blogpost on Google’s Blogger service. Both were purportedly by the claimant, but in fact were created by an imposter. The claimant alleged both were defamatory and infringed her right to resect for privacy under art 8 of the European Convention on Human Rights (ECHR).
Both posts were taken down after the claimant alerted the companies. The claimant’s actions were brought against ‘Facebook’ and Google (UK) Ltd.
The Master had dismissed both claims on the principal ground that the claimant had a sued or attempted to sue a company that was not responsible for the publication complained of. The claimant appealed.
On what basis was the claimant seeking a reference to the Court of Justice of the European Union (CJEU)?
The claimant sought a reference to the CJEU on two grounds, both of which were rejected by the judge.
First, for an authoritative interpretation of Google Spain SL and another company v Agencia Espanola de proteccion de Datos (AEPD) and another: C-131/12  All ER (D) 124 (May), a data protection case, the reasoning of which in relation to liability the claimant sought to argue should apply to defamation and privacy cases.
Second, for the CJEU to determine whether the defendants were ‘hybrid public authorities’ pursuant to ECHR, art 8.
What was the court’s view on the defendant’s liability for publication of defamatory material about the claimant?
The claimant had failed to plead a viable case that the defendants were liable for publication. The claimant did not have permission to amend her claim to change the name of the defendant to Facebook UK Ltd (from ‘Facebook’). In any event, there was no realistic prospect of the claimant showing that either UK subsidiary was responsible for publication under the test as set out in Byrne v Deane  1 KB 818,  2 All ER 204.
The claimant’s argument that the reasoning in Google Spain should apply was rejected—that was a case on the interpretation of the Data Protection Directive 95/46/EC, and in any event did not mean, that a subsidiary could be liable for the actions of a parent company.
What did the court conclude in respect of the claimant’s art 8 claim?
The test for liability for publication is the same in an art 8 claim as in a defamation claim. Therefore, the claim was rejected on the same basis. The argument that the defendants were in any way a public authority under the Human Rights Act 1998 was rejected—neither company carries out public functions.
In light of the court’s conclusion that the claimant essentially sued the wrong entities, does the claimant now have any other recourse?
The court noted that the claimant had commenced a separate action against Google Inc and Google (UK) Ltd (later discontinued against the UK company) for misuse of private information and under the Data Protection Act 1998. It remains to be seen how that case will progress. The claimant could have discontinued her claims against the UK companies and brought an action against the US and/or Irish companies. The judge made some comments on these matters.
Are there any other points to take away from this judgment?
It is vitally important that the appropriate cause of action is sued upon and the correct test for liability applied. The CJEU Google Spain case sets out a test for liability as a data controller based on the wording of the Data Protection Directive, which applies to data protection cases, not to defamation or privacy cases. The test of who is a publisher for the purposes of defamation and privacy actions is a matter of domestic law, relying on the line of authorities stemming from Byrne v Deane.
Felicity McMahon is a barrister at 5RB specialising in media law, including defamation, privacy and confidence, copyright, data protection, access to journalistic material, contempt, harassment, injunctive relief and sports law. Her work often includes consideration of the balance between arts 8 and 10 of the European Convention on Human Rights. She also takes a keen interest in issues relating to online publication, social media and user-generated content.
Interviewed by Janine Isenegger.
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