15 February 2016
The ECHR has held that the right to freedom of expression of two internet portals was infringed by their being held liable for user generated content on their websites.
What’s the issue?
Last year, the ruling by the European Court of Human Rights (ECHR) in the case of Delfi v Estonia, held that the Estonian Courts had acted within their margin of appreciation and had not infringed Delfi’s right to freedom of expression under Article 10 of the European Convention on Human Rights in holding the internet portal Delfi liable for racist and threatening user generated content (UGC) posted on its site, despite the fact that the offending comments were taken down once Delfi was put on notice. A number of commentators (although not, it must be said, Taylor Wessing) were concerned that this ruling would open the floodgates to claims against intermediaries for UGC, resulting in significant adverse consequences for intermediaries and for free speech.
What’s the development?
The ECHR has ruled upholding the Article 10 rights of two online portals in Hungary, finding that the local courts were wrong to hold the applicants (originally the defendants) liable for UGC on their websites. The ECHR said that the local courts had failed to balance the applicants’ Article 10 rights with the Hungarian claimant’s Article 8 rights to protection of reputation.
What does this mean for you?
This ruling confirms that Delfi has not set a dangerous precedent in this area. Judge Kuris emphasised in the concurring Opinion, that these matters have to be dealt with on a case by case basis. While the ECHR followed the principles set out in Delfi when considering the decisions of the Hungarian courts, they distinguished this case from Delfi on its facts and drew a different conclusion as a result.
The ECHR has ruled that Hungarian courts were wrong to hold that two defendants, the owner of a major internet news portal and the self-regulatory body of Hungarian internet content providers, were liable for user generated comments on their websites which allegedly damaged the claimant’s reputation. The Hungarian courts’ actions were contrary to Article 10 of the European Convention on Human Rights (the right to freedom of expression) and not only had the courts not balanced the defendants’ Article 10 rights with the right of the claimant (a company) to protection of its reputation under Article 8 of the Convention, but Hungarian law precluded it from doing so.
The case was distinguished from Delfi v Estonia on the basis that Delfi had involved illegal comments (which this case did not) and that Delfi had a higher monitoring duty than the defendants because its website had a history of attracting such comments.
The claimant, a website operator, had alleged that comments made in response to an opinion piece accusing the claimant of unethical commercial practices infringed the claimant’s Article 8 rights. The content was not moderated but the defendants used disclaimers on their websites and their terms and conditions prohibited the posting of unlawful content. In addition, they operated notice and take down procedures. The Hungarian Supreme Court held the defendants liable for the comments because the makers of the comments could not be traced and because there was no intermediary defence available to them under Hungarian law which only protects intermediaries in the context of e-commerce. The Hungarian Constitutional Court agreed, saying the Supreme Court was right to treat moderated and unmoderated content in the same way in this instance.
The ECHR found that the defendants should have been aware of their potential liability and accepted that the local courts had been pursuing the legitimate aim of protecting the rights of others. The ECHR then had to assess whether the interference was necessary in a democratic society.
The ECHR considered that the standards which should be applied to the defendants were those applicable to the press. The comments were not clearly unlawful (unlike those in Delfi) and one of the defendants was a non-profit, self-regulatory body without commercial interests. While under ECHR case law, companies are unable to claim violation of personality rights, it was enough that the Hungarian courts had considered that Article 8 rights were relevant in this instance.
The ECHR followed the criteria set out in Delfi when assessing proportionality i.e. the context of the offending comments; the measures taken by the defendants to remove them; the liability of the actual authors of the comments as an alternative to the intermediary’s liability; and the consequence of the proceedings for the defendants. It also considered the consequences of the comments for the claimant.
The ECHR held that:
- there was a public interest in holding a debate about the claimant’s business practices;
- the Hungarian courts had failed to take into consideration the different interests of the respective defendants;
- the comments were offensive but not unlawful – they were also made in a style which, while of a low nature, was common in communication on internet forums, thereby reducing their impact;
- the Hungarian courts had failed to assess how feasible it would have been to establish the identity of those posting the comments;
- it was difficult to reconcile the Hungarian courts’ decisions with ECHR case law which required a particularly strong reason for punishing a journalist for third party statements, in order to protect freedom of speech and discussion of matters in the public interest;
- the defendants had general measures to prevent and remove defamatory comments but the Hungarian courts had erred in their assessment of what action the defendants should have taken, requiring standards which could undermine free speech. They had effectively determined that the defendants were liable simply for having provided space for the comments;
- the Hungarian courts had failed to take into consideration the conduct of the claimant and the fact that the claimant had not requested that the comments be taken down prior to launching proceedings;
- at the time the comments were made, the claimant’s business practices were already under investigation so the ECHR was not convinced that the comments made any real impact on the claimant’s reputation (which in any event would be only commercial rather than moral);
- while the defendants had only been ordered to pay costs rather than damages to date, the real question was not the financial liability but the manner in which internet portals can be held liable for third party comments. Such foreseeable liability could have negative consequences such as closing down commenting space which might have a chilling effect on the freedom expression on the internet, particularly for a non-commercial website. The Hungarian courts had not considered this, particularly as there had been no balancing act between Article 8 and Article 10 rights; and
- the ECHR questioned whether Hungarian law had adequately protected the defendants’ right to freedom of expression.
The ECHR concluded that these considerations were sufficient to allow the conclusion that the Hungarian courts had breached the defendants’ Article 10 rights in holding them liable for the third party comments.