Communicated on 15 December 2015

FIRST SECTION

Application no. 3877/14 Payam TAMIZ against the United Kingdom lodged on 31 December 2013

STATEMENT OF FACTS

The applicant, Mr Payam Tamiz , is a British national, who was born in 1989 and lives in Maidstone. He is represented before the Court by A. Melville-Brown of Withers LLP, a firm of solicitors based in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The background facts

Blogger.com is an Internet service provided by Google Inc., a corporation registered in the United States and with its principal place of business there. Blogger.com is also based and managed in the United States but is available worldwide. It is a platform that allows any Internet user in any part of the world to create an independent blog. It includes design tools to help users create layouts for their blogs and, if they do not have their own web address, enables them to host their blogs on Blogger.com web addresses. The service is free of charge but bloggers can sign up to a linked Google service that enables them to display advertisements on their blogs, the revenues from which are shared between the blogger and Google Inc.

On 27 April 2011 a piece appeared on the “London Muslim” blog, a blog hosted on the Blogger.com website. It contained a photograph of the applicant and the following text:

“ Payam Tamiz a Tory Muslim council candidate with a 5 o ’ clock shadow has resigned from the party after calling Thanet girls ‘ sluts ’ .

Tamiz who on his Twitter page describes himself as an ‘ ambitious British Muslim ’ is bizarrely studying law so one would have thought this Tory prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks.”

A number of anonymous comments were subsequently posted in response to the publication. Eight of the approximately forty-six comments are set out in detail in the following paragraphs.

Comment A:

“I know Mr Tamiz very well and am surprised that it has taken this long for all this to come out, Payam is a known drug dealer in thanet and has been taken to court for theft from his employers tescos in Ramsgate. His whole family are criminals his mother Mrs Sohela Tamiz has several convictions for theft and shoplifting and got sentenced at maidstone crown court

28 April 2011 14:53”

Comment B:

“Can ’ t deny what he said is true but isn ’ t this the same Payam Tamiz that use to take girls back to his ‘ houseparties ’ practically every weekend with his friends and sleep with them? Hypocritical much?

30 April 2011 12:28”

Comment C:

“The blokes a class A prat not only for the comments he recently made. He may have a few half wits as a following but I speak for the people that have known payam for several years and have been on the reciving end of his abuse a disrespect and his not such a nice person. I ’ m sure we ’ ll be hearing alot more from his past which will paint a true picture of him.

28 April 2011 23:04”

Comment D:

“So Mr Whacker is a voilent racist, certainly doesn ’ t like white people does he?!

If you ’ d ever been to Margate you would find the majority are white women, even those from the Eastern bloc. To tar all Margate women with the word slut is very derogatory, how does he know? Does he make a habit of chasing women around? Or as someone implys above, does he sell drugs to them?

28 April 23:51”

Comment E:

“I ’ ve only read that Payams claiming to be 21, I ’ m sure he told me that his older than that. Fake asylum claim was it. The good old home office and all us wankers that pay tax for waste of spaces like him.

29 April 2011 01:09”

Comment F:

“Before Payam starts to call women sluts it might be an idea for him to look closer to home, how may brothers and sisters has he got, all with different fathers. I thought Muslim men were the one who were meant to have more than one wife, not the women with more than one husband. Is there not a 30 year gap between the ages of his younger to older brother and sister. Look closer to home pal.

29 April 2011 09:40”

Comment G:

“The only reason his callig girls slags is cos he aint getting none himself. And he blames a relationship breakup for his comments, but the only problem with that being is that Payams never had a girlfriend since I known him and thats been a couple of years, that makes him single at the time.

Poor little Payam , has you giving it the large one to your friends blown up in your face and back fired.

It couldn ’ t have happeneded to a better person, his a little snake and he knows it. I ’ d put my money on him still being a virgin, not being funny but you only got to look at his picture to work that out.

29 April 2011 21:26”

Comment H:

“And his brothers girl friend is an escort girl, Claudine Lear, look closer to home pal.

29 April 2011 18:43”

On 28 or 29 April 2011 the applicant notified Google Inc that he considered comments on the blog to be defamatory using the “report abuse” function on the relevant webpage.

He sent a letter of claim to Google UK Ltd (a United Kingdom subsidiary of Google Inc ) on 29 July 2011 which was received by them on 5 July. In his letter he complained about the blog itself and about Comment A. The letter was passed by Google UK Ltd to Google Inc , which responded by email on 8 July 2011 seeking clarification of whether the comment was said to be untrue, since that was not apparent from the terms of the letter. The applicant responded on the same day confirming that Comment A was “false and defamatory” and introducing a complaint about Comment B.

On 19 July 2011 the “Blogger Team” at Google Inc sent the applicant an email seeking permission to forward his complaint to the author of the blog page and confirming that they would not themselves remove the impugned comments. The applicant gave the necessary permission on 22 July 2011 and complained that comments C, D, E, F and G were also defamatory.

On 11 August 2011 Google Inc forwarded the letter of claim to the blogger.

On 14 August the post and all the comments were removed by the blogger. The applicant was informed the following day.

2. The domestic proceedings

(a) The High Court

Meanwhile, on 10 August 2011, the applicant sued Google Inc in relation to comments A to G, claiming that they were defamatory of him, and sought permission to serve the claim form out of jurisdiction. On 22 September 2011 permission was granted to serve the claim form on Google Inc in the United States. The applicant subsequently incorporated a complaint about comment H into the particulars of claim and served them on Google Inc.

Google Inc sought to have the permission to serve the claim out of jurisdiction set aside and asked the High Court to declare that it had no jurisdiction to try the claim. It argued that that it had no control over any of the content of the blog and was not a publisher of the material but merely a neutral service provider. It said that it had no way of knowing whether the comments complained of were true or not, or subject to some other defence in law. It argued that it could not reasonably be expected to investigate and determine the truth or falsity of allegations made by bloggers. Google Inc argued in particular that:

(1) the claim form did not allege that the comments had been accessed by a substantial number of readers in the jurisdiction. There was therefore no “real and substantial” tort;

(2) Google Inc was not a publisher for the purposes of the English law of defamation;

(3) even if Google Inc were to be regarded as a publisher, it would be protected from liability by Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (“the 2002 Regulations”), which implemented the provisions of Article 14 of Directive 2000/31/EC of the European Parliament and of the Council dated 8 June 2000 relating to electronic commerce (see “Relevant domestic law”, below).

The solicitor conducting Google Inc ’ s case lodged a witness statement in the following terms:

“9. Blogger.com is not involved with the creation of content that people post on their blogs. It does not create, select, solicit, vet or approve that content, which is published and controlled by the blog owners ...

10. Blogger.com does operate a ‘ Content Policy ’ which sets out restrictions on what users can do using the service ... This makes clear that content such as child pornography, or promoting race hatred, is prohibited. The policy is explained in the following terms:

‘ Blogger is a free service for communication, self-expression and freedom of speech. We believe that Blogger increases the availability of information, encourages healthy debate and makes possible new connections between people.

We respect our users ’ ownership of and responsibility for the content they choose to share. It is our belief that censoring this content is contrary to a service that bases itself on freedom of expression.

In order to uphold these values, we need to curb abuses that threaten our ability to provide this service and the freedom of expression it encourages. As a result, there are some boundaries on the type of content that can be hosted with Blogger. The boundaries we have defined are those that both comply with legal requirements and that serve to enhance the service as a whole. ’

11. [Google Inc ] also operates a ‘ Report Abuse ’ feature ... There are eight grounds for reporting abuse, and users have to select one of these. The eight listed are ...

Defamation/Libel/Slander

...

12. If the user selects ‘ Defamation/Libel/Slander ’ , which is what appears to have happened in this case ..., a second screen is displayed.

13. The second screen makes clear that the Blogger.com service is operated in accordance with US law, and that defamatory material will only be taken down if it has been found to be libellous (i.e. unlawful) by a court. The reason for this policy is that under US law, [Google Inc ] is not a publisher of third party content hosted on blogspot.com. US law works on the basis that claimants must raise their defamation issues directly with the author of the material, not third party service providers such as Blogger.com.

14. Given the volume of content uploaded by users of the Blogger service, it is usually not practicable for [Google Inc ] to remove content without first receiving the Court ’ s determination that the content is, in fact, libellous. Google is not in a position to adjudicate such disputes itself.”

On 2 March 2012 the High Court held that it should decline jurisdiction and that the order for service out of the jurisdiction should be set aside.

The judge characterised Comments C, E, F, G and H as “mere vulgar abuse” to which no sensible person would attach much, if any, weight. However he considered that comments A, B and D were arguably defamatory.

On the question whether Google Inc was the “publisher”, the judge noted that no allegation had been made as to liability on the part of Google Inc in respect of any of the comments complained of prior to the applicant ’ s having given notification of his objections. The judge continued:

“35. ... It is relevant to have in mind, although it cannot be determinative as a matter of law, that Google Inc promulgates and attempts to follow a well known policy of its own; that is to say, it will not remove offending material because it is not in a position to investigate or come to a decision upon any legal challenge. As I understand it, this is partly a question of principle and partly a matter of sheer practicality. Google Inc regards itself as providing a platform for the free exchange of information and ideas and would not wish to be seen as a censor. In any event, the blogs on Blogger.com contain, I am told, more than half a trillion words and 250,000 new words are added every minute. In these circumstances, it is virtually impossible for the corporation to exercise editorial control over content. The position was summarised by [counsel for Google Inc ’ s ] instructing solicitor in paragraph 9 of his witness statement ...

...

38. Google Inc accepts the responsibility of notifying (albeit not always with great promptitude) the blogger(s) in question. It does not, however, accept that it should investigate every complaint received, whether by way of establishing the facts or obtaining advice on the relevant domestic law or laws that may be applicable. The fact that an entity in Google Inc ’ s position may have been notified of a complaint does not immediately convert its status or role into that of a publisher. It is not easy to see that its role, if confined to that of a provider or facilitator beforehand, should be automatically expanded thereafter into that of a person who authorises or acquiesces in publication. It claims to remain as neutral in that process after notification as it was before. It takes no position on the appropriateness of publication one way or the other. It may be true that it has the technical capability of taking down (or, in a real sense, censoring) communications which have been launched by bloggers or commentators on its platform. Yet that is not by any means the same as saying that it has become an author or authoriser of publication. 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.

39. It seems to me to be a significant factor in the evidence before me that Google Inc is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant ’ s objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one ... I would rule that Google Inc is not liable at common law as a publisher. It would accordingly have no need to rely upon a defence (statutory or otherwise). ”

Finally, the judge said that if, contrary to that view, Google Inc was to be regarded as a “publisher”, section 1 of the Defamation Act 1996 (“the 1996 Act” – see “Relevant domestic law”, below) provided it with a defence, notably because it took reasonable care in passing the complaint on to the blogger once it had been notified. Alternatively, regulation 19 of the 2002 Regulations would provide Google Inc with a defence if it were otherwise needed.

(b) The Court of Appeal

The applicant sought leave to appeal to the Court of Appeal. He argued that the High Court was wrong to conclude: that Google Inc was not a “publisher” at common law, that Google Inc had an unanswerable defence under section 1 of the 1996 Act, that Google Inc had an unanswerable defence under regulation 19 of the 2002 Regulations. He invoked his rights under Article 8 of the Convention.

Leave to appeal was granted and on 14 February 2013 the Court of Appeal dismissed the appeal.

It accepted the High Court ’ s findings as to the nature of the comments and agreed with its conclusion that Comments A, B and D were arguably defamatory.

On the question whether Google Inc was a publisher, the court noted that the applicant ’ s pleaded case related to the period after Google Inc had been notified of the complaint. It considered the High Court judge to have been wrong to regard Google Inc ’ s role in respect of Blogger.com blogs as a purely passive one and to attach the significance he did to the absence of any positive steps by Google Inc in relation to continued publication of the comments in issue. It explained:

“24. By the Blogger service Google Inc provides a platform for blogs, together with design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its own choice and it can readily remove or block access to any blog that does not comply with those terms ... As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them, but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.

25. By the provision of that service Google Inc plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge of, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article. Nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed. Such a corporation may be liable as a primary publisher by reason of the involvement of its employees or agents in the publication. But there is no relationship of employment or agency between Google Inc and the bloggers or those posting comments on the blogs: such people are plainly independent of Google Inc and do not act in any sense on its behalf or in its name ...”

The court was also very doubtful that Google Inc ’ s role was that of a secondary publisher, facilitating publication in a manner analogous to a distributor. It concluded that, in any event, such an argument could get nowhere in relation to the period prior to notification of the complaint in light of a long-established line of authority that a person involved only in dissemination was not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory. Since it could not be said that Google Inc knew or ought reasonably to have known of the defamatory comments prior to notification by the applicant, Google Inc could not be viewed as a secondary publisher prior to such notification. The court further found that even if it could be so regarded, it would have an unassailable defence during that period under section 1 of the 1996 Act.

As to Google Inc ’ s position after notification, the Court of Appeal took a different view from the High Court. It considered that if Google Inc allowed defamatory material to remain on a Blogger blog after it had been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material. The submission by Google Inc that the scale of the Blogger set-up made such an inference unrealistic and that nobody would view a comment on a blog as something with which Google Inc had associated itself by taking no action to remove it were matters for argument, but were not decisive in determining whether the applicant had an arguable case. Such an inference could only be properly drawn once Google Inc had had a reasonable time to remove the defamatory comments. The court further considered it open to argument that the time taken to remove the comments after notification – over five weeks as regards Comments A and B – was sufficiently long to give rise to such an inference. The claim could therefore not be dismissed on the ground that Google Inc was clearly not the publisher.

It was accordingly necessary to consider the defence under section 1 of the 1996 Act. Here, the Court of Appeal agreed with the High Court that Google Inc did not come within the definition of “commercial publisher” in section 1(2) of the Act and could be accurately characterised, as provided in section 1(3 )( e), as providing access to a communications system by means of which statements were transmitted or made available by a person over whom it had no effective control. The court added that Google Inc could not sensibly be said to have “issued” the defamatory comments, even if it was involved in their publication in a way capable of attracting liability at common law. Its involvement was of a kind analogous to, if not identical to, that described in section 1(3)(e) and the existence of a contractual term about the content of blogs was not sufficient to give it “effective control” over the person who posted the defamatory comments. In relation to the period prior to notification, it was clear that Google Inc had taken reasonable care in relation to publication and did not know that what they had done had caused the publication of a defamatory statement. As to whether Google Inc had taken reasonable care in relation to the continued publication of the comments, the Court of Appeal found the High Court to have taken a “generous view” on this question. However, the court was not persuaded that it was wrong. The relevant factors for determining the question tended in Google Inc ’ s favour:

“43 ... the company had no responsibility for the content of the comments or the decision to publish them; the circumstances of publication include the vast number of blogs that are hosted on Blogger, which may be said to justify a longer response time; and there is no evidence of anything in the previous conduct of the particular blogger or of those who posted the comments that might have called for speedier action to be taken.”

As to whether it could be said that in the period after notification of the complaint Google Inc did not know, and had no reason to believe, that what it did caused the publication of a defamatory statement, the Court of Appeal thought not. The court was therefore not satisfied that, if Google Inc were considered to be a publisher, it would have an unassailable defence under section 1 of the 1996 Act.

It was therefore necessary to consider whether any potential liability on the part of Google Inc was sufficient to justify the maintenance of proceedings against it (whether there was a “real and substantial” tort). The Court of Appeal found that the High Court was plainly right to conclude that the claim should not be allowed to proceed because both the damage and any eventual vindication would be minimal and the costs of the exercise would be out of all proportion to what would be achieved. It explained:

“50. ... The allegedly defamatory comments were posted between 28 and 30 April, soon after the initial blog of 27 April. By the very nature of a blog, they will have been followed by numerous other comments in the chain and, whilst still accessible, will have receded into history. As I have indicated, the earliest point at which Google Inc could have become liable in respect of the comments would be some time after notification of the complaint in respect of them. But it is highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog. It follows ... that any damage to the appellant ’ s reputation arising out of continued publication of the comments during that period will have been trivial; and in those circumstances the [High Court] judge was right to consider that ‘ the game would not be worth the candle ’ . I do not accept [the] submission that various other features of the claim, including the fact that the appellant ’ s name is relatively uncommon and distinctive in this jurisdiction, undermined the judge ’ s conclusion.”

It followed that the appeal failed and, in the circumstances, it was unnecessary to consider whether Google Inc would have had a defence under regulation 19 of the 2002 Regulations.

(c) The Supreme Court

The applicant sought permission to appeal from the Supreme Court. He argued that the judgment of the Court of Appeal did not strike the correct balance between Articles 6, 8 and 10 of the Convention and unlawfully denied him access to a court and deprived him of the means to vindicate his Article 8 rights.

On 1 July 2013 the Supreme Court refused permission to appeal on the basis that the applicant did not raise an arguable point of law.

B. Relevant domestic law

The Defamation Act 1996 amended the law of defamation. Section 1 is headed “responsibility for publication” and provides, in subsection (1), that a person has a defence in defamation proceedings if he shows that:

“( a ) he was not the author, editor or publisher of the statement complained of,

(b) he took reasonable care in relation to its publication, and

(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”

Pursuant to section 1(2), “author”, “editor” and “publisher” have the following meanings:

“ ‘ author ’ means the originator of the statement, but does not include a person who did not intend that his statement be published at all;

‘ editor ’ means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and

‘ publisher ’ means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.”

Section 1(3)(e) provides that a person shall not be considered the author, editor or publisher of a statement if he is only involved as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

Pursuant to section 1(5), in determining whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard must be had to:

“(a) the extent of his responsibility for the content of the statement or the decision to publish it,

(b) the nature or circumstances of the publication, and

(c) the previous conduct or character of the author, editor or publisher.”

Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 provides:

“Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where–

(a) the service provider–

( i ) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or

(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and

(b) the recipient of the service was not acting under the authority or the control of the service provider.”

COMPLAINTS

In applicant ’ s submission the respondent State was in breach of its positive obligation under Article 8 of the Convention to protect his right to reputation, since defamatory allegations had been published for a period of three and a half months on a website hosted by Google Inc but the domestic courts had refused to grant him a remedy for the resulting damage.

He further asserts that by applying the test of “no substantial tort”, the domestic courts had denied him access to a remedy for the serious interference with his Article 8 rights caused by the publication of the comments.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?

2. If so, was that interference justified in terms of Article 8 § 2?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?