05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) "Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the storage provider (if he otherwise would) shall not be liable for damages or for any pecuniary remedy or for any criminal sanction as a result of that storage where – (a) the service provider(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or (ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the information; and (b) the recipient of the service was not acting under the authority or the control of the service provider." Google will argue that it is entitled to rely on all these defences and claim that it did not have the necessary knowledge and that when it did have it acted expeditiously to remove or disable access to the objectionable material for viewers in Northern Ireland. [67] While there are striking similarities between these different defences, there are obvious differences. At the very least I am not satisfied that Google has a common law defence to the plaintiff's claim in respect of the 23 days when URL2 was flagged but Google continued to make URL2 available for downloading in Northern Ireland and during which period it was downloaded a significant number of times. In determining what was a reasonable period of time the court is entitled to take into account the nature of the allegations made. These were on any reasonable view, vile and scurrilous allegations made against a sitting MP. To allow them to remain available for downloading for a period of 23 days from notification was, on the face of it, simply not good enough. I conclude that 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. In Tamiz the Court of Appeal at para [35] said: "In the context of the defence under Section 1 of the 1996 Act, considered below, Eady J described Google Inc's response as somewhat dilatory but outside the bounds of a reasonable response. Whilst I accept the judge's assessment in the context of the statutory defence, it is in my view open to argument that the time taken was sufficiently long to leave room for an inference adverse to Google Inc in the Byrne v Dean principle." So here. It may be at the trial the judge with all the facts will be in a position to conclude that Google acted with sufficient promptitude and therefore cannot be faulted. But at present on the untested information available to this court, it is not possible to conclude that Google is able to deliver the knock-out blow necessary to defeat the plaintiff's claim. [68] Insofar as it is suggested that there is a complete defence to the scurrilous remarks contained in URL2 made by the defendant on the basis that it is mere vulgar abuse, I reject those submissions. Vulgar abuse is not defamatory because as Lord Mansfield said in Thorley v Kerry [1812] 4 Taunt 355 at 365: "From mere general abuse spoken no action lies." [69] My view is that the words used did not constitute general vituperation or would be understood as such by those who heard them. To say of an elected public representative that he was a "terrorist supporter to the hilt" and to claim that he sides with Islamic terrorists who are beheading American citizens would most certainly reflect very badly on the plaintiff's character. There can be no doubt that file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 19/26