05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) downloads during the 23 day period between when URL2 was flagged and when access to viewers from Northern Ireland was barred. [65] The court has been provided with details of the enormous amount of video footage downloaded on an hourly basis from YouTube. It truly is enormous. The court is really in the dark as to the facilities available to remove objectionable material. That should become much clearer after discovery has been made. The court is asked to accept that the period of just over 3 weeks was sufficiently prompt to allow the court to conclude that the plaintiff cannot satisfy the tests under Order 11. [66] Google claim to have knock out defences to the hosting of URL2 on its YouTube site. These can be summarised as follows: (a) At common law, Google had "no knowing involvement in the process of publication of the relevant words": see Bunt v Tilley [2006] 3 All ER 336. It prevented publication within Northern Ireland after the video had been flagged within such a period that the court should be satisfied that any wrong was "so trivial as not to justify the maintenance of proceedings": see Tamiz v Google [2013] EWCA Civ 68 at [48]. In HL (A minor) v Facebook Ireland Limited [2012] NIQB 25 McCloskey J at [26] and [27] summarised the decision of the Court of Appeal in England in Tamiz v Google Inc [2012] EWHC 449 (QB) and [2013] EWCA Civ 68 as follows: "In passing, I am mindful that in Tamiz, the Court of Appeal opined that while Google plainly facilitates the publication of blogs and associated comments, it is not to be considered a primary publisher and is not to be equated with the author or editor of a defamatory article or the corporate proprietor of a newspaper. Richards LJ also expressed grave doubts about whether Google could be considered a secondary publisher, particularly in advance of notification of a complaint: see paragraph [26]. He did, however, differ from Eady J on the issue of publication after receipt of a complaint. Without determining the issue, the appellate court recognised the potential viability of an argument that, in this discrete situation, it might be inferred that Google had associated itself with, or made itself responsible for, the continued presence of the material on the blog, thereby becoming a publisher thereof: see paragraphs [27]–[34]. Significantly, however, Richards LJ added: '[35] I do not consider that such an inference could properly be drawn until Google Inc had had a reasonable time within which to act to remove the defamatory comments'." (Emphasis added). In Byrne v Dean [1937] 1 KB 818 the proprietors of a golf club were held responsible for the publication of an allegedly defamatory note on display, without the requisite permission, on a club notice board, because they were aware of it. They could easily have removed it but failed to do so. However, liability through omission will only arise where, in the circumstances of the case, it can be inferred from the failure to prevent publication or to remove the words already published and that defendant consented to or authorised publication or continued publication. In that case, Lesser LJ said that: "…persons who themselves take no overt action in the publication of defamatory matter may nevertheless so adopt and promote the reading of the defamatory matter as to constitute themselves liable for the publication." (b) Under Section 1 of the Defamation Act 1996 Google was not the publisher and "did not know and had no reason to believe, that what it did caused or contributed to a defamatory statement". Furthermore as soon as it had the requisite knowledge it removed the objectionable material as soon as reasonably possible. (c) Regulation 19 of the E-commerce Regulations. This provides: file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 18/26