The European Court Considers Media Defence’s Joint Intervention in Important Decision on Intermediary Liability

The European Court of Human Rights has dismissed the claim made, in Tamiz v. UK, by a British politician that his right to reputation had been violated because he was refused permission to sue Google Inc. for allegedly defamatory remarks on the Blogger.com platform. Media Defence co-ordinated a coalition of eight interveners in the case, who 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.

“This is a crucial decision from the European Court,” says Jonathan McCully, Media Defence’s Senior Legal Officer, “not only does it support the position that internet service providers should not be obliged to monitor content or proactively investigate potential defamatory activity on their sites, it also recognises that legal safeguards against individuals bringing trivial or non-substantial defamation claims can be a vital measure for protecting freedom of expression online.”

The case was brought by Payam Tamiz, a former local politician from the United Kingdom. In his application to the European Court, Mr Tamiz claimed that his right to respect for his private life had 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.

In its decision, the European Court found no violation of Mr Tamiz’s right to respect for his private life because the English courts had appropriately balanced his right to reputation against the right to freedom of expression. In doing so, the European Court highlighted “the important role that [internet service providers] such as Google Inc. perform in facilitating access to information and debate on a wide range of political, social and cultural topics.”

The coalition’s written comments, which can be read here, 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.

Media Defence would like to thank Lorna Skinner and Aidan Wills for drafting the intervention, and Jeff Hermes and Lorna Woods for their valuable input.

The coalition of interveners includes: Media Defence; 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