Tamiz v the United Kingdom (Application no. 3877/14)  ECHR (12 October 2017)
The European Court of Human Rights (ECtHR) has reinforced the importance of the freedom of expression in the European Convention on Human Rights in the context of online forums. The ECtHR found that the English courts had conducted “an appropriate balancing exercise” when determining that ‘vulgar’ comments posted on a blog operated by Google Inc. did not pose enough of a risk to the applicant’s reputation (Article 8) to warrant restricting the freedom of expression of Google Inc. and its users (Article 10).
In 2011, Mr Tamiz, a candidate for election to the Council of Thanet, was the subject of an online post on the blog “London Muslims”. The post included insulting remarks about Tamiz after it was discovered that he had posted derogatory comments about women on the Internet. The post attracted a number of comments including that Tamiz was “a class A prat” and “a violent racist”.
“London Muslims” uses the platform Blogger.com, which is an internet blog-publishing service provided by Google Inc., based in the United States. Tamiz took issue with some of the comments on the post and on 29 June 2011 he used the ‘Report Abuse’ feature on the blog, stating the ground for reporting abuse as ‘Defamation/Libel/Slander’. Tamiz then sent a letter to Google Inc. complaining about the defamatory nature of the comments.
Before the High Court of England and Wales, Tamiz sought to bring a claim in libel against Google Inc. in relation to eight comments on the post and was initially granted leave to serve the claim form on Google Inc. in the United States. Tamiz claimed these comments caused damage to his reputation up until the time they were deleted. Following Google Inc.’s subsequent challenge, the High Court declined jurisdiction and set aside the order for service outside of the jurisdiction on the basis that the comments were “mere vulgar abuse” and Google Inc., as the blog platform provider, was not a “publisher” under domestic law for libel.
In the subsequent appeal, the English Court of Appeal dismissed the appeal on the grounds that there was no “real or substantial tort”. It differed from the High Court in finding that Google Inc. could only have been liable as a publisher of the comments from when it was notified of the defamatory comments until such comments were removed. However, the English Court of Appeal ultimately confirmed the High Court’s finding that the claim should not be allowed to proceed because damage to Tamiz for that period would be minimal compared the costs of seeing through the claim.
The present case concerned an appeal to the ECtHR on the basis that in the courts’ decision not to allow service out of jurisdiction, the UK breached its obligation to protect Tamiz’s reputation in accordance with Article 8 (right to respect for private and family life which encompasses a person’s right to protection of their reputation).
The ECtHR held that the UK did not fail to uphold Tamiz’s right to privacy under Article 8 as it had conducted “an appropriate balancing exercise”: the comments did not attain the level of seriousness required to restrict Google Inc. and its users’ freedom of expression under Article 10. Moreover, the ECtHR was reluctant to substitute its own decision in the absence of “strong reasons” which justified the ECtHR in substituting its decision for those of the UK courts’ as there is a “wide margin of appreciation” in striking a balance between these two rights.
In determining if the UK had satisfied its obligation to protect Tamiz’s right to respect for reputation, the ECtHR considered the following factors.
Gravity of interference with private life - “Real and substantial tort”
The ECtHR found that the comments were not sufficiently serious to actually cause prejudice to Tamiz’s ability to exercise his right to respect for reputation. These comments, along with many other online exchanges, may have appeared defamatory but were too trivial in character and/or extent of publication to actually cause significant damage to a person’s reputation. The ECtHR highlighted that comments of this nature are common on the Internet and “little more than ‘vulgar abuse’”, and as a politician, Tamiz would be expected to tolerate them.
The existence of a consensus between the Contracting States of the Council of Europe as to the importance of the interests at stake
In relation to this factor, the ECtHR considered the interests of Google Inc.’s role as an information society service provider (ISSP) as distinguished from content producers. In support of this distinction, the Court referred to the Declaration on freedom of communication on the Internet (adopted in 2003 by the 840th meeting of Ministers’ Deputies, the Committee of Ministers of the Council of Europe) and Directive 2000/31/EC of the European Parliament and of the Council and other international declarations. Further, this international material determined that ISSPs like Google Inc. should not be responsible for content which they had not produced unless, after being made aware of the illegal activity, it does not expeditiously remove the content. As such, this aligns with the period of time the Court of Appeal considered Google Inc. could have been a “secondary publisher” pursuant to domestic defamation law.
An appropriate balance between Article 8 and 10 – “real and substantial tort” as an approach
The ECtHR noted that the UK courts “did not expressly balance the applicant’s right to respect for his reputation against the right to freedom of expression” of Google Inc. and its users. However, by determining whether there was a “real or substantial tort” in accordance with Jameel v Dow Jones & Co Inc  QB 946, the UK courts implicitly undertook the balancing exercise to determine whether the damage to Tamiz’s reputation and his right to respect for reputation was serious enough to warrant a restriction on the freedom of expression of Google Inc. and its users.
The primary reason there was not a “real or substantial tort” was because damages would, in any case, be nominal as Google Inc. would only be liable once it was notified of the defamatory nature of the comments, thereby engaging comparative analysis. The ECtHR agreed with the UK courts that an insignificant amount of people would have seen the comments once Google Inc. was put on notice. In the current proceedings, Tamiz argued that Google Inc. had provided no evidence to support this finding. However, the ECtHR relied on existing case law stating that the burden is on the applicant to show “substantial publication”; Tamiz had not.
The ECtHR stressed the importance of maintaining the free exchange of information, ideas and debate, and the crucial role of ISSPs in this exchange. The ECtHR found that while the right to freedom of expression and the right to privacy are equally important, in this circumstance limiting freedom of expression was not justified.
Therefore, the application of the “real or substantial tort” test was within the “wide margin of appreciation” afforded to the national courts in striking a balance between Article 8 and Article 10 and finding that the chance of trivial damages was an insufficient reason to interfere with Google Inc. and its users’ right to freedom of expression. Moreover, there were no “strong reasons” to justify the ECtHR to substitute its own decision for that of the national courts.
Tamiz highlights how a test of proportionality in the form of a “real and substantial tort” requirement balances the competing interests underpinning the right to privacy (and respect for reputation) on one hand, and the freedom of expression on the other hand.
Defamation, the Internet and rights
Although the judgment in Tamiz turned largely on the interpretation of Article 8, it reaffirmed and applied principles in existing case law regarding protecting Article 10 in digital spaces. In particular, the ECtHR agreed with the principles set out in Delfi AS v Estonia [GC] no. 64569/09, ECHR 2015. In Delfi, the Grand Chamber determined that it was not a disproportionate restriction of Delfi’s right to freedom of expression to hold it responsible for defamatory comments by third parties posted on its online article. However, the ECtHR noted that Delfi was a professional news portal which also published its own comments, run on a commercial basis, and that ruling is not inconsistent to that of Tamiz given that Google Inc.’s role was as blog platform provider.
In the context of internet search engines, the English High Court of Justice case Metropolitan Schools v Designtechnica  EWHC 1765 (QB) held that as Google used algorithms to automatically generate results, it lack the intention to ‘publish’ and was not a publisher of defamatory material generated. This approach was adopted by the Supreme Court of Canada in Crookes v Newton 2011 SCC 47 which held that the posting of hyperlinks, where the defamatory material was contained in the underlying webpage, was not in itself considered defamatory.
By contrast, freedom of expression under Australian law does not have the same primacy as shown in Tamiz. The upcoming High Court appeal of Google Inc v Trkulja  VSCA 333 (see Trkulja v Google Inc  HCATrans 129) may present such opportunity. Trkulja involves a series of images, results and autocomplete predictions generated from algorithms used by Google Inc. as a search engine provider and in its automated directory websites. In an application for service outside jurisdiction, the Victorian Court of Appeal found that Trkulja did not show reasonable prospects of success. Although the Victorian Court of Appeal was persuaded that Google Inc. was a secondary publisher of the material once it became aware of its potentially defamatory nature, the application was dismissed on the grounds that Google Inc. was not liable because the material itself was not capable of being defamatory because an “ordinary reasonable user of such a site” would understand the automatized nature of the results.
In the application for special leave to appeal, Justices Gordon and Nettle granted leave and alluded to the relative infancy of Australian defamation law in application to internet services and digital spaces, noting the Victorian Court of Appeal’s reliance on comparative foreign decisions and precedents set by state courts with little subsequent challenge, in particular, Duffy v Google Inc.  SASC 170 (which has since been subject to appeal).
In the absence of a binding legal principle of freedom of expression in Australia (beyond that of implied freedom of political communication), the only constraint to prevent over incursion of expression in digital spaces are from within defamation law and contingent on development of such laws. The uniform defamation legislation states as part of its objects, “to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance”. The regime also complements common law defences with statutory defences (such as qualified privilege for provision of certain information and innocent dissemination which have had limited success in Duffy and Trkulja). From a common law perspective, the New South Wales Supreme Court decision in Bleyer v Google Inc.  NSWSC 897 is a reasonable first step as it adopted a Jameel type threshold seriousness test albeit being justified by case management principles rather than a rights framework. However, the law has emerged in an ad hoc manner in recent years with cases in various state jurisdictions, and often long lines of appeal. The Trkulja appeal is an opportunity to clarify the position in Australian law, given the judgment by the Full Court of the South Australian Supreme Court in Google Inc v Duffy  SASCFC 130 which was handed down after special leave was granted.
The Internet and user’s freedom of expression
Of concern is that over protection by defamation law risks infringing on not only Google Inc’s freedom of expression but also that of its users. In Tamiz, the ECtHR noted the role of Google and other ISSPs in enabling individuals’ freedom of expression and the sheer magnitude of content available. Further, it noted that Google Inc. would not want to be seen to censor or be required to pre-emptively censor content of its users without proper cause and thereby curtail their freedom of expression. Interestingly, in Crookes, the Supreme Court of Canada actively engaged in the balance of protection of reputation and freedom of expression to depart from pre-Charter of Rights position in defamation law. Justice Abella noted the need for defamation to adapt given the scope of the Internet in expression:
The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.
Unlike Tamiz and Crookes, the freedom of expression of internet users is relatively exposed under Australian law as there is no overarching principle of freedom of speech to ‘fit’ the existing framework of common law and statutory defamation claims into ever-expanding role of the Internet and its modes of communication.
The full text of the decision can be found here.
Olivia Harle is an intern at the Human Rights Law Centre and a student at the University of Western Australia.
Angela Chen is a lawyer on secondment to the Human Rights Law Centre from Ashurst.