05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) because the defendant has been served and has also given an undertaking to the court in respect of his future conduct. [59] The court needs to consider whether Google is a necessary or proper party to proceedings. The court notes that the defendant is not legally represented. It is alleged that he has defamed the plaintiff in URL 2, and that Google is liable, having been advised of the defamatory content on its hosting site and then failing to remove it for a period of over three weeks. For reasons to be discussed later, I consider that there is a good arguable case for Google being liable for such a libel because it did not act with sufficient expedition to prevent continuing access to viewers from Northern Ireland. There is a real advantage in Google being before the court because should the plaintiff obtain an award of damages against both the defendant and Google, then the plaintiff can choose to enforce against Google which is inevitably going to be a better mark than the defendant. Indeed it is highly unlikely that the defendant will be able to satisfy any judgment for damages or costs. I am satisfied that there is a good arguable case that Google is a necessary and/or proper party. I also consider for reasons which I will discuss later that the plaintiff enjoys a prima facie case (at least) against Google in respect of libel, harassment under the 1997 Order and for breach of the 1998 Act. THE TORT GATEWAY [60] It is important to emphasise in my earlier conclusion that leave to serve out of the jurisdiction should not be granted in respect of any torts arising out of the publication of URL3 and URL4. The court, as a consequence of this serious and unexplained non-disclosure, although it has the power to do so, refuses to grant leave to serve out of the jurisdiction in respect of any cause of action not put fairly and squarely before Stephens J. For the sake of completeness I will set out briefly my views in respect of the merits so far as they affect URL3 and URL4. I do this should this decision be the subject of an appeal. (i) Defamation [61] The content of URL1 has not been made available. The plaintiff has not seen fit to set out its contents. Accordingly it is not possible to comment as to whether or not this is defamatory of the plaintiff (or constitutes harassment of the 1997 Order or breach of his rights under the 1998 Act). In respect of URL2, there is on the face of it a clear case of defamation. With URL3 there is a serious question raised, namely whether accusing a political opponent of being anti-Christian, anti-Jew etc is defamatory because it is alleging that the plaintiff is both bigoted and sectarian. URL4 is much more difficult. On balance, I consider that the modest hurdle, namely whether there is a serious issue to be tried, has been overcome even in the context of one politician accusing another politician of blackmailing a section of the community on a video. Even in the rough and tumble of politics, such a charge may serve to lower that person in the minds of right thinking persons. [62] It then falls to the plaintiff to satisfy this court that a libel was committed within the jurisdiction and/or that the damage has been sustained within this jurisdiction as a result of the libel. Accordingly, the plaintiff must satisfy the court that there is a good arguable case that: (a) the particular video was downloaded in Northern Ireland, and therefore published; and (b) Google bears a legal responsibility for the publication of that video. [63] Just because a video is available for downloading by Northern Ireland citizens on YouTube, does not mean that it has being published. There is no presumption on online publication within any jurisdiction: see Carrie v Tolkien [2009] EWHC 29. The plaintiff has to make a good arguable case that the video has been downloaded within this jurisdiction: see Berezovsky v Michaels [2000] 1 WLR 1004 per Lord Hope at 1032 D-E. [64] Any claim in respect of URL1 cannot pass through the tort gateway. The plaintiff avers that at least 4000 viewers downloaded URL2 after notification. It is clear that most, if not all these viewers, are likely to have been from Northern Ireland, as the defendant has few, if any, followers or supporters in Great Britain. The evidence such as it is establishes that there was a considerable number of file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 17/26