05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) [8] YouTube has two ways of dealing with material which it is claimed is unlawful. There is (a) the flagging system and (b) legal removal. (a) YouTube users can "flag" content about which they object. YouTube then reviews the flagged content to determine whether the video violates the YouTube policies which are posted in the Community Guidelines. The court has no idea how this review is performed. (b) Alternatively, users can complain about legal issues and seek a video's removal on that basis. This can be done either by using a Removal Request Page or through the "Reporting and Enforcement" section of YouTube. This permits users to complain about, for example, breach of copyright or defamation. It is averred that YouTube assesses each removal complaint on its own merits. Again it is not exactly clear to the court how this procedure is carried out. [9] These two processes operate individually of each other and are staffed by different personnel who apply different review criteria. A "flagging review" considers whether the video complained of breaches YouTube's terms of service and/or Community Guidelines. On the other hand a legal review considers whether the index video breaches the laws of that particular country from where the complaint emanates. [10] If a video is flagged and reported under both processes, then each different section reviews it and determines on the respective criteria that that section has to apply what should be done. In 2014 9,900,000 videos were removed in response to user flags and over 3,800,000 videos were blocked in response to legal removal reports. [11] As I have said the court remains in the dark about just how these reviews are carried out. It has no idea of the resources devoted by Google to these two separate processes and who carries out the reviews and in what circumstances. It would be pointless for this court to speculate. But the court is entitled to take judicial notice of the fact that Google is a huge corporation. It is a profit making organisation. It has an enormous turnover and generates substantial profits. YouTube is a major contributor to this success. Prima facie the court can reasonably expect that Google will devote sufficient resources to ensure that it does not permit YouTube to be used to allow malefactors to post vile and scurrilous calumnies that remain available for access to the public for unreasonable periods of time. [12] By letter dated 11 September 2014 the plaintiff's solicitors purported to serve on Google UK Limited a writ of summons, notice of motion and an affidavit from the plaintiff claiming an injunction contra mundum in respect of the misuse of private information by the defendants and the harassing of the plaintiff by the defendants. For reasons which have not been explained, no pre-action letter in accordance with the provisions of the Practice Direction in respect of defamation was sent. I do understand that the first defendant entered into an undertaking following the application for an injunction which precludes the defendant from publishing any video tape, film, recording or transcript of the defendant relating to the plaintiff taken in or about Bedford Street on 23 August 2014. [13] The first video, URL2, was posted to a YouTube account on 23 August 2014. The following day another video URL1 was posted to another YouTube account. On 26 August 2014 the plaintiff's solicitors flagged the video, URL1, for review using the reporting tool on the YouTube website. It was asserted that the issue of the video was "Racial-Promotes Hatred". Within 5 minutes the entire channel upon which the video, URL1 was maintained was removed globally from YouTube because it was regarded as belonging to a spam channel. On 27 August 2014 notification and a take-down letter in relation to URL2 was received from the plaintiff's solicitors. These letters complained that the video contained "untrue imputations against the reputation of Mr Connolly". On 28 August 2014 YouTube's Legal Support responded to the plaintiff's solicitors by email stating that the "complaint has been sent for review". [14] On 29 August 2014 a YouTube user flagged the video URL2 for review on the grounds of "pornography" using the reporting tools on the YouTube website. This was followed shortly afterwards with another flagging from another YouTube user on the grounds of "dangerous behaviour". On 1 September 2014 the plaintiff's solicitors flagged the video URL2 alleging "Racial – Promotes Hatred" using the reporting tool. On 10 September 2014 YouTube legal support replied to the plaintiff's file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 3/26