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Digital Business Lawyer
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Tamiz v. UK - balancing real and substantial tort and the ECHR

The recent European Court of Human Rights (‘ECtHR’) judgment in the long-running case of Tamiz v. UK found that the decision of the English High Court to refuse permission to a claimant to serve a libel claim against Google Inc. on the grounds that it was an abuse of process did not infringe the claimant’s Article 8 rights to a remedy for damage to his reputation. The judgment provides important commentary on the necessary balancing exercise between Article 8 and Article 10 of the European Convention on Human Rights (‘ECHR’) in ‘abuse of process’ cases and the extent to which internet service providers can be held liable for unlawful content after failing to act quickly to remove once on notice of it. The Court of Appeal judgment therefore remains a very important authority on intermediary liability for defamation in the UK, as Ashley Hurst and Alexander Vakil, of Osborne Clarke, explain.

The facts

In April 2011, a number of allegations were made about the applicant, Mr Tamiz, by way of anonymous comments on the ‘London Muslim’ blog. The blog was hosted on Blogger.com, an internet blog-posting service provided by Google Inc.

Shortly after publication, the applicant followed the ‘report abuse’ function to notify the website operator that he considered certain comments on the blog to be defamatory. The applicant followed up his notification with a letter to Google UK Ltd (which was passed on to Google Inc.). Having sought clarification from the applicant as to the truth or otherwise of the comment complained of, on 19 July 2011, the Blogger team at Google Inc. sent the applicant an email seeking permission to forward his complaint to the author of the blog page and confirmed that they would not themselves remove the comments complained of. The applicant gave his permission, and on 14 August 2011 (Google Inc. having notified the blogger of the complaint on 11 August 2011), the blog post and the comments were removed by the blogger.

Despite the post and comments having been removed, the applicant brought a libel action against Google Inc. Permission to serve the claim form out of the jurisdiction was subsequently granted. Google Inc. asked the High Court to declare that it had no jurisdiction to try the claim.

English libel proceedings

The High Court held that the order for service out of the jurisdiction should be set aside. In considering whether there was any real evidence of a “real and substantial tort,” the Judge accepted that three of the comments complained of were arguably defamatory but described the remaining comments complained of as “mere vulgar abuse.”

As the applicant had brought a claim against Google Inc. rather than the authors of the comments, the High Court had to consider whether Google Inc. had the necessary attributes of a ‘publisher’ for the purposes of the English law of defamation. The Judge at first instance concluded that Google was not liable in common law as a publisher, as its role was merely a passive one. In any event, the Judge held that if Google Inc. was a publisher, it would be afforded a complete defence under Section 1 of the Defamation Act 1996 (the ‘1996 Act’) because it took reasonable care in passing the complaint on to the blogger once it had been notified.

The applicant sought leave to appeal which was granted and subsequently dismissed. However, the Court of Appeal disagreed with the Judge at first instance on the role of Google as a non-publisher and stated that it was wrong to regard Google Inc’s role during this period as a “purely passive one.”

The Court of Appeal held that if Google Inc. allowed defamatory material to remain on a blog after it had been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and therefore had become a publisher of the material, although such an inference could not properly be drawn until Google Inc. had a reasonable time to remove the defamatory comments. It was considered that five weeks was “sufficiently long to give rise to such inference.” As a result, the claim could not be dismissed on the ground that Google Inc. was not the publisher and a consideration of the defence under Section 1 of the 1996 Act was necessary.

As Google Inc. had been informed of the publication of a defamatory statement, the Court of Appeal could not be satisfied that if Google Inc. was considered a publisher, it would have an unassailable defence under the 1996 Act. The Court of Appeal did not need to consider the defence available to Google under Regulation 19 of the E-Commerce Regulations but similar analysis would have applied as in relation to Section 1 of the 1996 Act.

However, crucially, the Court of Appeal nevertheless agreed that the High Court was plainly right to conclude that the claim should not be allowed to proceed because the damage and eventual vindication would be minimal and the costs of the exercise would be out of all proportion to what would be achieved - in other words, there had been no “real and substantial tort.” Despite Google therefore having taken around five weeks to remove the content, it won by the skin of its teeth.

The applicant sought leave to appeal to the Supreme Court, but permission was refused and so the applicant petitioned the ECtHR.

Complaints

The applicant submitted that the UK was in breach of its positive obligation under Article 8 of the ECHR to protect his right to reputation, since defamatory allegations had been published for a significant period of time, but the domestic courts refused to grant him a remedy for the resulting damage. He further asserted that by applying the test of “no real and substantial tort,” the domestic courts had denied him access to a remedy for the serious interference with his Article 8 rights caused by the publication of the comments.

Convention rights

The ECtHR has accepted that the right to respect for private life under Article 8 of the ECHR encompasses a person’s right to the protection of his or her reputation (Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012). As the right to respect for private life requires not only that the state refrain from interfering with private life but also entails certain positive obligations (Mosley v. the United Kingdom, no. 48009/08, § 106, 10 May 2011), it follows that Article 8 encompasses a positive obligation to the contracting states to ensure the effective protection of the right to respect for reputation within their jurisdiction (Pihl v. Sweden (dec.), no. 74742/14, § 28, 7 February 2017).

The notion of ‘respect’ in Article 8 is not clear cut and can normally be secured by a number of possible methods. The choice of measures designed to secure compliance with the contracting states’ positive obligations in the sphere of the relations between individuals in principle falls within their margin of appreciation.

The ECtHR has identified a number of factors to be taken into account when determining the breadth of the margin of appreciation to be accorded to the state in such cases. In cases where the measures which an applicant claims are required would have an impact on freedom of expression, a fair balance has to be struck between the competing rights and interests arising under Article 8 and Article 10. Where the balancing exercise between these two rights has been undertaken by the national authorities in conformity with the criteria laid down in the ECtHR’s case law, the ECtHR will require strong reasons to substitute its view for that of the national courts.

Judgment

The ECtHR agreed with the High Court that whilst the majority of comments about which the applicant complained were undoubtedly offensive, for the large part they were little more than “vulgar abuse” of a kind which is common in communication on many internet portals and which the applicant, as a budding politician, would be expected to tolerate.

The ECtHR also noted that this case was not a case in which no measures were in place to enable the applicant to protect his Article 8 rights. The ECtHR rightly noted that the applicant had three options available to him to protect any perceived damage to his reputation: to bring libel proceedings against (i) the authors of the comments; (ii) the author of the blog or (iii) Google Inc. Although the ECtHR noted that the applicant was prevented from serving the claim on Google Inc., this was because the High Court concluded that the applicant’s claim did not meet the real and substantial tort threshold required to serve defamation proceedings outside the jurisdiction.

Although the national courts did not explicitly balance the applicant’s right to respect for his reputation against the right to freedom of expression, they noted that the primary purpose of the real and substantive tort test in Dow Jones & Co Inv v. Yousef Abdul Latif Jameel was to ensure that a fair balance was struck between Article 8 and Article 10. As such, by applying the real and substantive tort test, the national courts were ensuring that there would be no interference with Google Inc.’s right to freedom of expression in a case where the interference with the applicant’s reputation was “trivial.”

The ECtHR concluded that it was satisfied that the appropriate balancing exercise was conducted by the national courts and that the reasons given for their decision were both “relevant and sufficient,” and found that the national courts acted within the wide margin of appreciation and achieved a fair balance between the applicant’s right to respect for his private life under Article 8 and the right to freedom of expression guaranteed by Article 10.

Comment

Whilst not an unexpected outcome, the judgment serves as a useful reminder that even if the ‘serious harm’ test for libel is met (a test that is assessed as at the time of publication following the Court of Appeal decision in Lachaux), that is not the end of the matter in terms of getting a libel claim off the ground. The game must still be worth the candle and trivial claims are liable to be struck out as an abuse of process.

In the case of claims against internet intermediaries, potential liability only attaches from the point at which the intermediary has failed to act expeditiously to remove the unlawful content. The fact that it does not act expeditiously does not mean it is liable for all the damage caused to date but only the damage caused by failure to remove the content. In many cases, any damage will already have been done and so the damage caused after the time period for removal has expired may be minimal.

There is however always the option of trying to identify the anonymous user through the Norwich Pharmacal disclosure process. Whilst the ECtHR acknowledged that a Norwich Pharmacal application to obtain the identity of the anonymous user was often a difficult and protracted procedure, the wide jurisdiction of the English courts under S.37(1) of the Senior Courts Act 1981 means that the process for identifying anonymous publishers so as to enable a claim to be brought should not be ruled out, and may be preferable to serving proceedings out of the jurisdiction on an internet intermediary.

Finally, this should not be taken as any indication that a five week removal time is acceptable. This will all depend on the circumstances. The more serious the content, the faster the courts will expect removal to take place.

Ashley Hurst Partner

ashley.hurst@osborneclarke.com

Alexander Vakil Senior Associate

alexander.vakil@osborneclarke.com

Osborne Clarke, London

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