Lexploria

Information Note on the Court’s case-law 211

October 2017

Tamiz v. the United Kingdom (dec.) - 3877/14

Decision 19.9.2017 [Section I]

Article 8

Article 8-1

Respect for private life

Refusal of leave to serve defamation proceedings outside the jurisdiction on grounds that alleged damage to reputation was minimal: inadmissible

Facts – The applicant sought to bring a claim in libel following the publication of a number of comments on a blog, which he regarded as defamatory. The blog was hosted by an Internet blog-publishing service run by Google Inc., a corporation registered in the United States. The applicant was granted permission to serve the claim form on Goo gle Inc. in the United States but Google Inc. was subsequently successful in having that permission set aside. The English courts concluded that the claim should not be allowed to proceed because both the damage and any eventual vindication would be minima l and the costs of the exercise would be out of all proportion to what would be achieved; in other words there had been no “real and substantial” tort as required to serve defamation proceedings outside the jurisdiction.

Before the European Court the appli cant argued that in refusing him permission to serve a claim form on Google Inc., the respondent State had been in breach of its positive obligation under Article 8 to protect his right to reputation.

Law – Article 8: The choice of measures designed to se cure compliance with the Contracting States’ positive obligation in the sphere of the relations between individuals in principle fell within their margin of appreciation. A number of factors had to be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in such cases: the nature of the activities involved – including the gravity of the interference with private life; the existence or absence of a consensus across the Contracting States of the Council of E urope, either as to the relative importance of the interest at stake or as to the best means of protecting it; and, in cases where the measures which an applicant claimed were required pursuant to positive obligations under Article 8 would have an impact o n freedom of expression, the fair balance that had to be struck between the competing rights and interests arising under Article 8 and Article 10. Where the balancing exercise between those two rights had been undertaken by the national authorities in conf ormity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the national courts.

An attack on personal honour and reputation had to attain a certain level of seriousness and to have been carried out in a manner causing prejudice to the personal enjoyment of the right to respect for private life. That threshold test was important. The reality was that millions of Internet users posted comments online every day and many of those users e xpressed themselves in ways that might be regarded as offensive or even defamatory. However, the majority of comments were likely to be too trivial in character, and/or the extent of their publication was likely to be too limited, for them to cause any sig nificant damage to another person’s reputation. The Court agreed with the national courts that while the majority of comments about which the applicant complained were undoubtedly offensive, for the large part they were little more than “vulgar abuse” whic h was common in communication on many Internet portals.

Although the applicant had ultimately been prevented from serving proceedings on Google Inc., that was not because such an action was inherently objectionable to the national courts. Rather, having a ssessed the evidence before them, they concluded that the applicant’s claim did not meet the “real and substantial tort” threshold required. That conclusion was based, to a significant extent, on the courts’ finding that Google Inc. could only, on the most generous assessment, be found responsible in law for the content of the comments once a reasonable period had elapsed after it had been notified of their potentially defamatory nature. The approach of the national courts had been entirely in keeping with the position in international law.* Nothing in the case of Delfi AS v. Estonia [GC], (64569/09, 16 June 2015, Information Note 186 ), upon which the applicant relied heavily, cast doubt on that posit ion.

It was clear from domestic law that the primary purpose of the “real and substantial tort” test was to ensure that a fair balance was struck between Articles 8 and 10; in other words, in applying that test the national courts were, in fact, ensuring that t here 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”. While the domestic proceedings in the present case preceded delivery of the Grand Chamber judgme nt in Delfi AS , in substance the national courts had addressed the specific aspects of freedom of expression identified therein as relevant for the concrete assessment of the interference in question.

Having particular regard to the important role that information society service providers such as Google Inc. performed in facilitating access to information and debate on a wide range of political, social and cultural topics, the Court considered that the respondent State’s margin of appreciation in the applicant’s case was necessarily a wide one. Furthermore, having discerned no “strong reasons” which would justify substituting its own view for those of the national courts, it found that they had acted wi thin that wide margin of appreciation and had achieved a fair balance between the applicant’s right to respect for his private life under Article 8 and the right to freedom of expression guaranteed by Article 10 and enjoyed by both Google Inc. and its end users.

Conclusion : inadmissible (manifestly ill-founded).

* See the Declaration on freedom of communication on the Internet , Committee of Ministers of the Counci l of Europe, 28 May 2003; Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society servi ces, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce”); Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE R epresentative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 21 December 2005.

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