Submission

ECHR: Serious harm jurisdictional threshold must be respected

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ARTICLE 19

04 May 2016

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On 29 April 2016, ARTICLE 19 filed a third-party intervention in Tamiz v the United Kingdom (no. 3877/14). In this case, the applicant, Mr Payman Tamiz, complains that the UK is 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.

The Court of Appeal had found that Google Inc could potentially be held liable as a publisher of the defamatory comments at common law once it had received notice of the complaint. However, the Court of Appeal considered that any potential liability on the part of Google Inc was insufficient to justify the maintenance of proceedings against it, as there was no “real and substantial” tort.

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

In our submission, ARTICLE 19 addresses:

  • Key general considerations relating to the application of defamation law to statements published online;
  • The importance and Convention compatibility of threshold tests in defamation proceedings; and
  • The application of the “fourth-instance” admissibility criteria in the case-law of the Court.

In essence, we argue:

  • In assessing any claims that are brought against internet users, it is crucial to take account of the fact that the majority of comments made by private individuals, particularly in response to blogs or posts on social media, are likely to be too trivial in character, and/or the extent of their publication is likely to be too limited, for them to cause any significant damage to another person’s reputation. It is well understood by readers of online publications that individuals posting comments online are often saying the first thing that comes into their heads and that their comments are not to be taken seriously. 
  • In light of this, it is particularly important that national legislatures and courts require claimants to show “significant” or “serious” harm to their reputation in order for a claim in defamation to proceed or succeed. Such threshold tests may be applied, among other things, to defamation claims generally; to applications to strike out a claim as an abuse of process; or to defamation claims brought against companies on the basis of intermediary liability who must defend defamation claims based on postings by their users (of which they would have had no prior knowledge).
  • If reasonably interpreted and applied, these tests will result in outcomes which strike an appropriate balance between the protection of reputation under Article 8 and freedom of expression under Article 10: a view, which is entirely consistent with the jurisprudence of the Court, which has repeatedly held that the reputational element of Article 8 will only be engaged where an attack on a person’s reputation attains a minimum level of seriousness.
  • Where applicants seek to challenge a national court’s decision applying a threshold test to the facts of a particular case, the Court’s jurisprudence on the “fourth-instance” doctrine is likely to be of relevance. In particular, absent an allegation of arbitrariness, any application which essentially invites the Court to second-guess such a decision is likely to be inadmissible on fourth-instance grounds.

If the Court decides to examine the intermediary liability issues that arose as part of the context of this case, ARTICLE 19 supports the submissions of the Medial Legal Defence Initiative and others in this case. In particular, we urge the Court to pay particular attention to the requirement of actual knowledge of illegality based on proper and substantiated notice before intermediaries can be held liable for content posted on discussion forums by third parties. In our view, such a requirement is vital to upholding freedom of expression on the internet as absent such protections internet intermediaries would be unable to assume the risk of providing open discussion fora in which members of the public can freely express their views on important issues of public interest.

ARTICLE 19 would like to thank Guy Vassam-Adams QC and Eleanor Mitchell of Matrix Chamber for drafting the submissions, and Dechert LLP for providing comparative law material for this case.

 

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