The second issue was whether Google Inc was a publisher according to common law principles. The judge remarked that there was yet to be a definitive decision establishing how web publishers fit into the traditional framework. He referred to Davison v Habeeb, 3 in which H.H. Judge Parkes QC found that there was an arguable case that Google was a publisher and liable post-notification. He suggested that the position “may well be fact sensitive”, pointing to the differences in law in the position in law of ISPs in Godfrey v Demon Internet 4 and of Google Inc in Metropolitan International Schools Ltd v Design Technica Corp. 5
On the question of whether Google Inc could be liable after notification, and on its policy that it will not remove the offending material as a matter of practicality and principle, the judge referred to the fact that the Blogger.com platform contains more than a half a trillion words, with a quarter of a million new ones added every minute. He held that accepting responsibility to notify the offending bloggers did not necessarily change Google's status, as he remarked:
“The fact that an entity in Google Inc's position may have been notified of a complaint does not immediately convert its status or role into that of a publisher.”6
The technical ability to take material down does not make it an “author or authoriser” of that material. The lack of any requirement to take a positive step in enabling continuing access to the material is crucial:
“The situation would thus be closely analogous to that described in Bunt v Tilley 7 and thus in striving to achieve consistency in the court's decision making, I would rule that Google Inc is not liable at common law as a publisher. It would accordingly have no reason to rely upon a defence.”8