Out-Law News 2 min. read
17 Oct 2017, 10:38 am
Payam Tamiz sued Google for defamation in 2011 over comments made about him by readers of a blog posted on Google's Blogger platform. Tamiz claimed Google was a publisher of the comments and therefore responsible for them. Tamiz had been a Conservative candidate in the local council elections.
However, the High Court ruled that Google was not a publisher of the comments and therefore was not liable in defamation. Google, with the permission of Tamiz, had passed on Tamiz's letter of claim to the author of the blog who subsequently removed the post and all the comments.
Tamiz appealed the High Court's judgment to the Court of Appeal.In 2013, the appeal was dismissed. The Court of Appeal opined that there was an arguable case that Google could be considered a publisher after it had been notified by Tamiz of the alleged defamatory comments on its platform, but only once a reasonable period of time in which to allow Google to remove the allegedly defamatory comments had elapsed. However, the Court of Appeal dismissed Tamiz's case after finding that there had been no "real or substantial" wrongdoing against Tamiz stemming from publication of the comments.
Tamiz failed in a bid to appeal that ruling to the UK Supreme Court, but brought a case against the UK government before the ECtHR for an alleged breach of his rights under article 8 of the European Convention on Human Rights. Article 8 provides individuals with qualified rights to respect for their private life, which the ECtHR has accepted encompasses protection of their reputation.
Tamiz claimed his article 8 rights had been unjustifiably interfered with by the UK courts when they considered, and dismissed, his case against Google.
However, the ECtHR determined that the UK courts had carried out an "appropriate balancing exercise" between Tamiz's rights and the freedom of expression rights that Blogger users and Google enjoyed. The ECtHR rejected Tamiz's complaint as "manifestly ill-founded".
"In light of the above considerations, and having particular regard to the important role that ISSPs (information society service providers) such as Google perform in facilitating access to information and debate on a wide range of political, social and cultural topics, the Court considers that the [UK's] margin of appreciation in the present case was necessarily a wide one," the ECtHR said.
"Furthermore, having discerned no 'strong reasons' which would justify substituting its own view for those of the national courts, it finds that they acted within this wide margin of appreciation and achieved a fair balance between [Tamiz's] right to respect for his private life under article 8 of the Convention and the right to freedom of expression guaranteed by article 10 of the Convention and enjoyed by both Google and its end users," it said.
The ECtHR said that the approach taken by the UK courts was "entirely in keeping with the position in international law", including the EU's E-Commerce Directive which prohibits measures being imposed on ISSPs to monitor or police for illegal activity on their platforms.
Tamiz had pointed to a previous decision of the ECtHR in a case concerning online news provider Delfi in Estonia, in which the court had set out steps such publishers must take to avoid being held liable for unlawful user comments.
However, the ECtHR said that the circumstances of that case differed from those that applied to Tamiz's case.
"In Delfi the Grand Chamber 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," the ECtHR said.