Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Expands Expression
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The First Section of the European Court of Human Rights concluded that the U. K. hadn’t failed in its duty to protect the right to a private and family life of an individual who had been victim of alleged defamatory comments made anonymously in the comments section of a blog hosted by Google’s “Blogger.com” service. The U.K. courts had dismissed the individual’s libel claim against Google Inc. The Court reasoned that the domestic courts had adequately balanced the Article 10 rights of both information society service providers (ISSPs) providers, such as Google Inc., and Blogger.com’s end users against the individual’s Article 8 right to respect for reputation, included in the right to a private and family life, by applying the “real and substantial tort” test in deciding whether to allow service out of the jurisdiction on Google Inc.
Mr. Payam Tamiz was a British National and a London council candidate. On April 27, 2011, a piece concerning him and containing his photograph appeared on the “London Muslim” blog. This blog was hosted by “Blogger.com”, a blog-hosting service owned by Google Inc. After the publication, many anonymous comments were posted in the comments section.
On April 28 or 29, Tamiz used the “report abuse” function provided by the “Blogger.com” service to complain that some of the anonymous comments were defamatory. He also complained about the blog itself and another one of the comments in a letter sent June 29 and received by Google on July 5. On July 8, Google sent an e-mail to Tamiz requesting clarifications concerning his complaint which the applicant provided the same day adding a complaint about another of the comments. On July 19, Google sent Tamiz another e-mail seeking permission to forward the complaint to the author of the blog and explaining that it would not remove the impugned comments. Tamiz responded on July 22 giving the necessary permission and adding five more comments to his complaint. Google forwarded the complaint to the blogger on August 11. The post and all the comments were removed by the blogger on August 14.
On August 10 Tamiz issued libel proceedings against Google Inc. in the U.K. courts in relation to the seven aforementioned comments and he was given permission to serve the claim on Google Inc. in the U.S. on September 22. Tamiz subsequently added another comment to his claim bringing the total number of impugned comments to eight. Following an application by Google Inc., the High Court on March 2 held that “it should decline jurisdiction and that the order for service out of the jurisdiction should be set aside”. [para. 24]
The High Court judge considered that, while five of the eight comments were “mere vulgar abuse to which no sensible person would attach much, if any, weight”, the remaining three comments were arguably defamatory. The judge also considered that Google’s potential liability was to be assessed only from the point it had been notified of Tamiz’ complaints. The judge highlighted that Google’s reasons for refusing to remove the offending material included firstly, its desire to be seen as a facilitator of the free exchange of ideas and not as a censor and, secondly, the practical reality that “the blogs on Blogger.com contained more than half a trillion words and 250,000 new words were added every minute” so that it was not feasible for the service provider to exercise editorial control. The judge also acknowledged that it would have been very difficult for Tamiz to take legal action against the authors of the comments given their anonymity but, despite this, he considered that Tamiz was required to prove that Google Inc. had the attributes of a publisher in order for it to attract any liability. [para. 27]
The judge concluded that, while Google Inc. indeed had the technical means to take down or “censor” communications made through the “Blogger.com” platform, this was not sufficient for it to be classified as a publisher of those communications. The judge reasoned: “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”. The judge further considered that, even if it was accepted as a publisher, Google Inc. would still not be liable because it had took reasonable care in passing the complaint on to the blogger and because the period between the moment it was notified of the complaint and the moment the comments were removed was so short that any liability incurred during that period would be too trivial to justify the continuation of the proceedings. [para. 29]
Tamiz’ appeal was dismissed by the Court of Appeal which shared the view that Google Inc. could not be considered a publisher noting that it did “not create the blogs or have any prior knowledge of, or effective control over, their content” and that there was no “no relationship of employment or agency between Google Inc. and the bloggers or those posting comments on the blogs”. The Court of Appeal did consider that Google Inc. could be considered and incur liability as a publisher if it had allowed defamatory material to remain published after being notified of its presence because it defined the limits of permitted content and had the power to remove or block access to offending material . It also considered that such liability would only arise after it had had a reasonable time to remove the impugned comments and that in this case the length of time was sufficiently long for liability to apply, namely, over five weeks since the earliest comment was complained about. [paras. 35-38]
However, it also took into account the nature of the blog system whereby the impugned comments would “have been followed by numerous other comments in the chain and, whilst still accessible, will have receded into history”. The Court said that, because of this, it was “highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog” and “any damage to the appellant’s reputation arising out of continued publication of the comments during that period will have been trivial”. Based on this, the Court of Appeal ultimately concluded that Tamiz’ claim should not be allowed to proceed as there was no “real and substantial tort”. [para. 39]
Tamiz sought permission to further appeal to the Supreme Court but the Supreme Court refused permission on July 1, 2013. He subsequently brought his complaint to the European Court of Human Rights (ECtHR) where the First Section issued a decision September 19, 2017.
The issue for the ECtHR to decide was whether the U.K. had failed in its duty to protect Tamiz’ (the applicant’s) right to private and family life in violation of Article 8 of the European Convention on Human Rights (ECHR).
The U.K. government argued that: (1) allowing the applicant’s claim to proceed when it was evident that all he could hope to recover were trivial damages would have been an unnecessary and disproportionate interference with the right to freedom of expression of Google. Inc and its users, (2) the national authorities had undertaken the balancing between the rights to freedom of expression and private life in conformity with the criteria laid down by the ECtHR’s case law and there were no “strong reasons” for the Court to substitute the criteria of the domestic authorities with its own; (3) the U.K. authorities had established the “real and substantial tort” test as a way of balancing the right to their reputation of people who had been defamed online and the right to freedom of expression of information society service providers (ISSPs) and their users; (4) the domestic courts had acted in conformity with EU Law; and (5) the practical difficulties the applicant may have faced in attempting to bring proceedings against the authors of the comments did not compel the domestic courts to upset the delicate balance between freedom of expression and privacy set by domestic and EU Law by imposing liability on Google Inc.
The applicant, on his part, argued that: (1) the impugned comments had constituted a public attack on his person in interference with his right under Article 8 of the ECHR; (2) while the domestic courts had a wide margin of appreciation for balancing the rights to freedom of expression and private life, they had not conducted such balancing exercise on his case as there had not been any hearing on the merits; (3) the domestic courts had not investigated factual issues and had not required Google Inc. to provide evidence regarding the extent to which the impugned comments had been viewed by third parties; (4) the domestic courts had failed to provide “relevant and sufficient reasons” to support their conclusion that his reputation had not suffered substantial damage; (5) the impugned comments constituted clearly defamatory statements of fact that did not contribute to a debate of public interest; (6) Google’s “notice-and-take-down” process was not satisfactory as four months had elapsed between his reporting of the abuse and the removal of the blog, his reputation having been severely harmed during this time without any means for vindication being provided for him; (7) if the ECtHR were to find a violation in his case it would not result in a “chilling effect” because many safeguards existed that would protect companies such as Google Inc. where they could not reasonably be said to have known of the content or where they acted expeditiously to remove it once they knew of its existence.
The Court began its analysis by recalling the principle set out in its case law that, in order to be considered an interference with a persons’ rights under Article 8 of the ECHR, an attack on personal reputation must attain “a certain level of seriousness”. The Court further acknowledged that “the reality is that millions of Internet users post comments online every day and many of these users express themselves in ways that might be regarded as offensive or even defamatory. However, the majority of comments are likely to be too trivial in character, and/or the extent of their publication is likely to be too limited, for them to cause any significant damage to another person’s reputation”. [para. 75]
The Court agreed with the domestic courts that the majority of the comments the applicant complained about were little more than “vulgar abuse” that the applicant, as a budding politician, should be expected to tolerate. Further, the Court considered that, even in the case of those comments that made more specific and potentially injurious allegations, they were likely to “be understood by readers as conjecture which should not be taken seriously”. [para. 81]
The Court then noted that the U.K. had not left the applicant without remedies to protect his reputation as the U.K. legal system afforded him with three different options for this purpose: (1) using a “Norwich Pharmacal application” to require Google Inc. to disclose the identities of the comments’ authors in order to pursue action against them; (2) pursuing action against the author of the blog; and (3) pursuing action against Google as the applicant did. They highlighted that, although the applicant was prevented from serving proceedings on Google Inc., this was not because such action was inherently objectionable under the domestic system but because, after assessing the evidence, the domestic courts had concluded that there was no “real and substantial tort”. The Court further highlighted that this conclusion was based on the domestic courts’ finding that Google Inc. could only be held liable for any damages caused by the comments “once a reasonable period had elapsed after it was notified of their potentially defamatory nature”. The Court considered that this approach was in keeping with EU law. [para. 83]
The Court also rejected the applicant’s argument that his claim was supported by the findings of the ECtHR in the Delfi case in which the Grand Chamber concluded that the Estonian government had not violated freedom of expression by holding the owner of a news portal liable for comments made by third parties in the comments section of a news article. According to the Court that case “was concerned with a large, professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them; it expressly stated that it did not concern other Internet fora, such as a social media platform where the platform provider does not offer any content and where the content provider may be a private person running a website or blog as a hobby”. [para. 85]
The Court then acknowledged that the domestic courts had not expressly balanced the applicant’s right to reputation against the right to freedom of expression of Google Inc. and its users. However, it considered that this was the applicant’s fault as he had not raised its arguments regarding Article 8 of the ECHR until late in the appeal process. It also considered that the U.K.’s “real and substantial tort” test had been created with the purpose of ensuring that a fair balance is struck between the conflicting rights and that “in applying this test the national courts were, in fact, 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’”. [para. 87]
The Court said it felt “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 that “having particular regard to the important role that ISSPs such as Google Inc. perform in facilitating access to information and debate on a wide range of political, social and cultural topics, [sic] the respondent State’s margin of appreciation in the present case was necessarily a wide one”. Thus, it concluded that there were no “strong reasons” to substitute the criteria of the domestic authorities with its own and declared the applicant’s claim “manifestly ill-founded” and, hence, inadmissible. [para.90]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by ruling that the U.K.’s “real and substantial tort” test is an adequate means of balancing the rights to freedom of expression and to personal reputation in the case of defamtory statements made in comments sections of online blogs. The test severely limits the potential liability of the blog hosting service providers which in turn prevents businesses and other relevant actors being discouraged from creating online spaces for the free exchange of ideas due to fear of liability.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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