Case Law, Strasbourg: Tamiz v UK: Article 8 complaint inadmissible, wide margin of appreciation on defamatory blog comment removal process – Natasha Holcroft-Emmess

17 10 2017

In Tamiz v UK, defamatory allegations published in blog comments remained online for over three months without national courts providing a remedy, but the European Court of Human Rights declared inadmissible a complaint that the UK had breached its positive obligation under Article 8 ECHR to provide protection for reputation.

Background

In April 2011 Mr Payam Tamiz, a Muslim Conservative council candidate, discovered a post on the “London Muslim” blog which included a number of disparaging comments about him. The blog was hosted on Blogger.com, Google Inc.’s free-to-use Internet blog publishing platform.

Mr Tamiz used Blogger.com’s “report abuse” function to flag up certain comments which he considered to be defamatory (“the Comments”). In June 2011, he sent a letter of claim to Google UK Ltd, which was passed onto its US-based parent company, Google Inc., by 8 July 2011. On 19 July, Google Inc. confirmed that it would not itself remove the impugned comments and asked Mr Tamiz’s permission to forward his complaint to the author of the blog. Mr Tamiz consented and Google Inc. forwarded the letter of claim to the blogger. On 14 August, the post and all comments were deleted by the blogger.

Mr Tamiz sought to bring a libel action against Google Inc. in relation to the Comments, applying for permission to serve the claim form in the US. Google Inc. wanted permission to serve out of jurisdiction set aside.

Domestic proceedings

The High Court blocked service out of jurisdiction. The judge considered whether there had been a “real and substantial tort”, as required to serve defamation proceedings out of jurisdiction (Dow Jones & Co Inc. v Yousef Abdul Latif Jameel [2005] EWCA Civ 75). The judge held that some of the Comments were arguably defamatory but concluded that Google Inc.’s role as an information society service providers (“ISSP”) was a “purely passive one” and that it could not liable at common law as a “publisher”.

The Court of Appeal disagreed that Google Inc.’s role from the point of notification of the complaint was purely passive. If Google Inc. allowed defamatory material to remain after notification, it might be inferred to have associated itself with, or made itself responsible for, the continued presence of the material, and thereby to have become a publisher. Such an inference would only be drawn once a reasonable time had elapsed for removal of defamatory comments. The time taken by Google Inc. after notification was deemed sufficient to give rise to such an inference. The claim could not therefore be dismissed on the ground that Google Inc. was not a publisher.

However, in any event, the Court of Appeal was satisfied that the claim should not proceed on the ground that there had been no “real and substantial tort”: damage to Mr Tamiz’s reputation during the period in which Google Inc. could potentially be liable as a publisher would be minimal and the cost of allowing the claim to proceed would be disproportionate to the potential benefit. Mr Tamiz sought to appeal to the Supreme Court, but the latter refused permission on the ground that the case did not raise an arguable point of law.

Judgment

Before the ECtHR, Mr Tamiz contended that the domestic courts’ refusal of permission to serve a claim form on Google Inc. meant the UK had breached the positive aspect of Article 8 ECHR [59].

It is well established that the right to respect for private life under Article 8 ECHR encompasses a right to protection of reputation (Axel Springer AG v Germany [2012] ECHR 227 [83]). This incorporates a positive obligation to ensure effective protection of respect for reputation (Pihl v Sweden [2017] ECHR). However, “respect” may be secured through various potential methods and the State is afforded a margin of appreciation. In determining the breadth of the margin, a “fair balance” must be struck between rights under Articles 8 and 10 ECHR (Mosley v UK [2011] ECHR 774 [108]-[111]). Where this balancing exercise has been undertaken by national courts in accordance with criteria laid down in Convention jurisprudence, the ECtHR requires “strong reasons” to substitute its own view for that of national authorities.

Fair balance

The Court held that the national courts’ refusal to permit service out of jurisdiction was based on their conclusion that Mr Tamiz’s claim did not meet the “real and substantial tort” threshold. The purpose of the threshold was to ensure a fair balance between the Article 10 rights of ISSPs, such as Google Inc., to free expression, as well as the Article 10 rights of Blogger.com’s end users, and the Article 8 right to respect for reputation [87].

Having “particular regard to the important role that ISSPs… perform in facilitating access to information and debate on a wide range of political, social and cultural topics”, the ECtHR afforded the national authorities a wide margin of appreciation. The Court concluded that the domestic courts had acted within the margin of appreciation and achieved a fair balance between Articles 8 and 10 ECHR [90].

No strong reasons to differ from the national courts

Mr Tamiz contended that the national courts had not given sufficient reasons for finding it “highly improbable” that a significant number of readers would have accessed the impugned content post-notification. However, emphasising that the burden falls on the claimant in an Internet libel action to prove substantial publication, the Court concluded that Mr Tamiz had not shown substantial publication [88]-[89].

The ECtHR was therefore satisfied that the reasons given by the national courts to refuse permission for service out of jurisdiction were relevant and sufficient. The Court could not discern any strong reasons to substitute its own view for that of the national courts.

As a result, Mr Tamiz’s Article 8 complaint was rejected as manifestly ill-founded and his application to the ECtHR was declared inadmissible.

Comment

This case raises an interesting question about whether equivalence exists between the threshold test of a “real and substantial tort” and the required exercise of balancing Articles 8 and 10 ECHR. Although the national courts did not expressly balance the relevant rights, the Court was satisfied that the reasoning adopted did incorporate an appropriate balancing exercise.

A further interesting detail concerns the extent of material hosted on ISSP sites. As noted in the domestic proceedings, Blogger.com contains more than half a trillion words and 250,000 new words are added every minute. Given this voluminous material, considerations of practicality, as well as principle, unsurprisingly weigh on the Court’s mind.

Finally, the division between the High Court and Court of Appeal considering the circumstances in which ISSPs may be regarded as “publishers” is interesting. The Court of Appeal’s conclusion on this point entails that ISSPs would do well to act swiftly once notified of offending material.

Natasha Holcroft-Emmess is a trainee barrister at Matrix Chambers.


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2 responses

17 10 2017
16 11 2017
Nick

Very interesting, thank you.

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