November 23, 2017
This guest post was written by Ingrida Milkaite (Ghent University)*
On 12 October 2017 the European Court of Human Rights (the Court, the ECtHR) decided on the liability of Google Inc. as an information society service provider for offensive comments posted below a blog post about Mr Payam Tamiz. His application filed under article 8 of the European Convention on Human Rights (ECHR, the Convention) was declared inadmissible.
Background and facts
In spring 2011, Mr Tamiz stood for election to the Council of Thanet, a local government district of Kent, England. During that period, the news about his derogatory Facebook comments on women in the area surfaced and he resigned. On the day of his resignation, a post appeared on the “London Muslim” blog reporting on the news and concluding that he is “bizarrely studying law so one would have thought this Tory prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks”. The post attracted attention from anonymous commenters resulting in around forty-six comments, eight of which were considered offensive by Mr Tamiz. The comments included such phrases as “a known drug dealer”, “his whole family are criminals”, “a class A prat”, “a violent racist”, “fake asylum claim”, “he is a little snake and he knows it”. (§ 9-16)
Google Inc. is a corporation registered in the United States. It provides an internet blog-publishing service via Blogger.com which is a platform that allows any internet user to create a blog for free. (§ 4) The “London Muslim” blog was posted on this platform. One of the ways to report abuse on this service is through the ‘Defamation/Libel/Slander’ option provided by Google Inc. However, this feature is operated under the United States law according to which defamatory material can only be taken down if it is found libellous by a court.
On 29 June 2011, Mr Tamiz used the “Report abuse” function of the service and indicated that some of the comments were defamatory. Two months later he also sent a letter of claim, complaining of the blog itself and one comment, to Google UK Ltd (subsidiary) which then forwarded the letter to Google Inc. In August 2011, thus more than three months later, Google Inc. forwarded the letter to the author of the blog post who then removed the blog post together with the comments. In the meanwhile, Mr Tamiz brought a claim in libel against Google Inc.
The UK High Court – the court of the first instance – decided that Google Inc. was not liable in this situation and the claim in libel could not be brought against it. The court first evaluated whether there was any evidence of a “real and substantial tort”. While most comments were considered “mere vulgar abuse”, three of them, according to the court, were arguably defamatory. The second related issue was whether Google Inc. could be considered a “publisher” under English law. In this sense, the judge first decided that such legal liability could only be possible from the point Google Inc. received the notification from Mr Tamiz. (§ 26) Further, the court noted that notification did not change Google Inc.’s status to that of a publisher as it took no position on the appropriateness of the publication and remained neutral. Despite the fact that Google Inc. may have the technical capability to remove content, it would not mean it could be considered the author or the authoriser of the publication. This argument is followed by an interesting example:
“It is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.” (§ 29)
Thus, the court concluded that since it had a purely passive role, Google Inc. should not be regarded as a publisher, or even as one who authorises publication, under the common law.
The Court of Appeal dismissed the claims by Mr Tamiz and mostly agreed with the decision of the High Court. However, the Court of Appeal had a different opinion concerning Google Inc.’s status post notification and stated that it was wrong to consider that Google Inc.’s role after the notification remained a purely passive one. Despite that, it found that the High Court was generally right to dismiss the claim because there had been no “real and substantial tort”. In this sense, the Court concluded that the chance of many readers accessing the comments was low which meant that the damage to the appellant’s reputation was trivial and “the game would not be worth the candle”. (§ 39)
Submissions of the parties
Having exhausted all national remedies, Mr Payam Tamiz submitted his application to the ECtHR stating that the United Kingdom was in breach of its positive obligation under article 8 ECHR to protect his right to reputation, since defamatory allegations had been published for a period of three and a half months on a website hosted by Google Inc. but domestic courts had refused to grant him a remedy for the resulting damage. As a consequence, he claimed that his right to an effective remedy (article 13 ECHR) was also breached. (§ 57)
The Government argued that the complaint was manifestly ill-founded due to the fact that the comments did not reach the threshold of a seriously offensive reputational attack. The contrary conclusion would result in a disproportionate and unnecessary interference with the article 10 rights of Google Inc. (§ 62) Mr Tamiz, on the other hand, stated that the national courts did not conduct a balancing exercise regarding articles 8 and 10 in this case and only focused on the threshold of the “real and substantial tort” analysis consequently failing to provide sufficient reasons for concluding that his reputation was not substantially damaged. (§ 67-68)
Google Inc., Media Legal Defence Initiative and Article 19 submitted their third-party interventions, stressing the importance of the rights laid down in article 10 ECHR for information society service providers (ISSPs) and the comments’ trivial, limited damage to a person’s reputation. They claimed that a requirement to preview online comments before their publication could constitute a disproportionate burden on intermediaries which may also result in them acting as censors in order to avoid liability.
Decision of the ECtHR
First of all, the ECtHR reminded the parties that a person’s reputation is protected under article 8 of the Convention and that the member states have a positive obligation to ensure its effective protection. As the notion of “respect” is not clear-cut and can be protected in different ways, the choice of the measures to realise this obligation falls within the margin of appreciation of the contracting states. In Mosley v the United Kingdom (App no 48009/08, 10 May 2011), the ECtHR established specific factors which should be taken into account when deciding on the breadth of a state’s margin of appreciation, including the nature of the activities and the fair balance that has to be struck between the competing rights and interests. Notably, where the balancing exercise between articles 8 and 10 ECHR has been undertaken by the national authorities, the ECtHR will require strong reasons to change the conclusion of the national courts. (§ 79)
When applying these factors to the present case, the ECtHR stressed the fact that millions of internet users post possibly offensive or even defamatory comments online every day, but the majority of these comments are likely to be too trivial in character or their publication too limited to cause any significant damage to another person’s reputation. In this sense, the ECtHR noted that the applicant was a budding politician and, thus, would be expected to have a higher tolerance threshold, even though Mr Tamiz’s comments were posted in July 2010 – before he joined the Conservative Party. Having also considered the applicant’s other options (such as bringing libel proceedings against the author(s) of the blog and comments) the Court concluded that Mr Tamiz’s claim did not meet the “real and substantial tort” threshold required for defamation proceedings. (§ 81-82)
The Court concluded that the national courts conducted an appropriate balancing test as the primary purpose of the “real and substantial tort” test was to ensure that a fair balance was struck between articles 8 and 10 of the Convention. (§ 87, 89) As the Court could not find any strong reasons to disagree with the view of the national courts, it rejected the applicant’s complaint as manifestly ill-founded under article 35 (3) (a) ECHR. Consequently, his claim under article 13 (right to an effective remedy) was also rejected.
Both, the right to private life and reputation (article 8) and the right to freedom of expression (article 10) are equally important fundamental human rights. Again, the ECtHR confirmed that neither of them are absolute and in a case of a “clash” between these rights, a thorough balancing exercise needs to be conducted. Obviously, the balancing exercise should be conducted in each individual case, taking into account all the specific factors and special circumstances, such as, for example, the applicant being a striving politician. However, sometimes it might be quite difficult for the person estimating his own case to have a clear answer and that is especially the case when such broad terms as “trivial effect”, “minimal, limited, significant damages” are used by the UK Courts and the ECtHR. In this sense, it is important to note that it is not always easy for anyone to determine what actually is or is not a trivial or significant effect for a specific person’s life. This is particularly true for such situations where articles or blog posts attract hundreds of possibly defamatory comments, those comments then become accessible through search engine results, articles and comments are tweeted and retweeted online, shared on Facebook, Instagram or other popular platforms. Thus, in the light of the fundamental balancing of article 8 and article 10 ECHR, it is important to not only stress the crucial role the internet plays in terms of freedom of expression, sharing of information and access to it but also to bear in mind the effect the accumulated online world can have on an individual in cases of uncontrollable distribution of defamatory material.
Notably, the applicant’s arguments in domestic proceedings primarily focused on national law and only at the end of his written submissions for the UK High Court did he argue that “the right to freedom of expression in Article 10 of the Convention was not to be prioritised, that reputation was among the rights protected by Article 8, and that Article 8 and 10 rights were to be accorded equal weight.” (§ 31) The High Court judge noted that “one should guard against imposing legal liability in restraint of Article 10 of the Convention where it was not necessary or proportionate to do so.” (§ 28) Even so, what the national courts in this case did, in essence, was evaluate the threshold of a “real and substantial tort” of defamation and the legal possibility of Google Inc. being considered a publisher for the purposes of the English law of defamation. Now, in para 86, the European Court of Human Rights stated that “[i]t is true that the national courts did not expressly balance the applicant’s right to respect for his reputation against the right to freedom of expression of both Google Inc. and its end users” but it nevertheless accepted the reasoning of the national courts. (§ 89) The question arises whether the defamation tort analysis can be considered to be a balancing exercise concerning freedom of expression and privacy rights.
It is commendable that the Court really focused on the importance of ISSPs and internet users’ freedom of expression in the online world that we live in. Not only did the Court refer to international documents on online freedom of expression, but it also mentioned the relevant responsibilities that online service providers have in the Council of Europe and the European Union. According to the United Nations and the Organisation for Security and Cooperation in Europe, the Council of Europe, ISSPs should not be held responsible for third party content unless they failed to act expeditiously in removing or disabling access to it once they became aware of its illegality. Moreover, the Court noted that the EU Directive on Electronic Commerce expressly prohibits member states to impose a general obligation on ISSPs to monitor the information which they store and to actively seek facts or circumstances indicating illegal activity. (§ 84) All things considered, it is important to bear in mind that the awareness regarding intermediary liability is currently growing and the topic has now been actively discussed in Europe for a long time.
Regarding the previous case law of the ECtHR, the Grand Chamber’s judgement Delfi AS v Estonia (App no 64569/09) is a very important one (the Strasbourg Observers’ blog post on the case can be found here). Delfi AS – a large commercial news portal publishing articles of its own and inviting readers to comment on them – was found liable for defamatory comments posted on its platform despite the fact that it expeditiously removed the offensive comments as soon as it was notified about them. The Grand Chamber stressed that “the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channelled by any input from the forum’s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby” (§ 116 Delfi) which is exactly the case in Tamiz v the United Kingdom. This and the fact that Google Inc. is not a professionally managed internet news portal run on a commercial basis distinguished the two cases. Moreover, unlike Google Inc., Delfi AS was considered to be a publisher exercising substantial control over the comments and actively providing content (rather than just a technical service) and was therefore found liable.
* Ingrida Milkaite is a doctoral student in the research group Law & Technology at Ghent University. She is working on the research project “A children’s rights perspective on privacy and data protection in the digital age: a critical and forward-looking analysis of the General Data Protection Regulation and its implementation with respect to children and youth” (Ghent University, Special Research Fund).
 Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005 (§ 56).
 On 28 May 2003, at the 840th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted a Declaration on freedom of communication on the Internet (§ 54).