Media Defence asks ECtHR to strengthen protection for intermediaries

The Media Legal Defence Initiative has co-ordinated a coalition of eight interveners who have urged the European Court of Human Rights to strengthen its protection of intermediaries following its recent judgments in Delfi v. Estonia and MTE and Index.hu v. Hungary.

The coalition has submitted written comments in Tamiz v. UK; a case brought by Payam Tamiz, a former local politician from the United Kingdom. In his application to the European Court, Mr Tamiz claims that his right to respect for his private life has been violated because the English courts refused to grant him a remedy against an intermediary, namely Google. Mr Tamiz originally brought a case before the English courts claiming that a number of third-party comments posted by anonymous users on Google’s Blogger.com were defamatory. Ultimately, the courts dismissed Mr Tamiz’s claim on the basis that the resulting damage to his reputation would have been trivial, and therefore not capable of justifying the maintenance of proceedings against Google in England.

The coalition’s written comments outline the approaches to intermediary liability adopted in the USA, Brazil, India and Argentina. All of which offer greater protection to intermediaries than the European Court’s jurisprudence. As a result, the coalition urges the European Court to strengthen the protections afforded to intermediaries under Article 10 ECHR. The written comments emphasise that intermediaries are not best placed to arbitrate on the lawfulness of user comments, and that they should not be expected to remove content following extra-judicial notices. The written comments also address the important guarantee offered by laws that permit the striking out or stay of frivolous or trivial claims in defamation.

MLDI’s Legal Director, Nani Jansen, notes that “this case will be of great interest to all intermediaries, big and small, who are concerned about the European Court’s position on their liability in relation to user-generated content. The Court’s current position has a negative impact on innovation and free speech online. We hope that the European Court reaches a decision that properly protects the rights of intermediaries, and consequently the freedom of expression of their users.”

Read the written observations here. MLDI would like to thank Lorna Skinner for drafting the intervention, and Jeff Hermes and Lorna Woods for their valuable input.

The coalition of interveners includes: Media Legal Defence Initiative; Media Law Resource Centre; Association Of American Publishers; Dutch Association of Journalists; European Publishers Council; Greenpeace International; Lorna Woods; NRC Media; Persgroep Nederland; and the World Association of Newspapers and News Publishers