Sunday, 21 February 2016

Freedom of expression and liability for Internet comments: a key new ECHR judgment

Lorna Woods, Professor of Internet Law, University of Essex

Should the providers of internet sites be liable for the comments which people make on them? The European Court of Human Rights had addressed this issue in important recent judgment: MTE v. Hungary.

Given the importance of intermediaries to the development of the internet, there are policy grounds for suggesting that intermediaries should not be treated in a manner analogous to a (knowing) publisher in the off-line environment, but should instead be provided with some level of immunity from suit in respect of the views of others.  Last year in Delfi (which I discussed here) the Grand Chamber of the European Court of Human Rights ruled that the holding of a newspaper portal liable for the comments of end users was not a violation of the freedom of expression, as guaranteed by Article 10 ECHR. That decision was much criticised.

The issue of the liability of an on-line newspaper for the comments of its readers has now come before the Court again. In this case, however, the Court’s chamber, while referring at a number of points in its judgment to the reasoning of the Delfi Grand Chamber, came to a different conclusion from that in Delfi. In so doing, has the Court departed as a matter of legal principle from its previous approach, or are the facts sufficiently different from Delfi so as to justify a different outcome on that basis?  Given this difference, MTE although not the first case on intermediary liability, is important in showing the development of the Court’s thinking in respect of the internet.


There are two applicants: a company which runs a news portal; and a non-profit organization, which is the self-regulatory body of the internet content providers in Hungary. Each carried a story on their respective web sites about the behaviour of an on-line estate agency, claiming it did not adhere to high consumer protection standards.  In response to the story, there were a number of comments from end users. The owner of the estate agency sites brought a civil action against the two applicants in respect of the original opinion and some of the comments in response to it. At this point the applicants removed the challenged content. The applicants argued that they were not responsible for third party comments. The highest national court disagreed even though, during the litigation process, various national courts adopted different approaches to reasoning and even outcome in this case.


The European Court of Human Rights noted that there was no dispute that there had been an interference with the applicants' freedom of expression. The main issue before the Court was the justification for that interference under Article 10(2) ECHR. The Court re-capped the general principles applicable to such an assessment: lawfulness, legitimate aim and proportionality. While the national courts gave different reasons for the application of the law imposing liability, the Court nonetheless found that, given that the applicants were engaged in their activity professionally, they were in a position to assess the risks and that therefore the law on which the interference was based was sufficiently foreseeable to be regarded as lawful as required by Article 10(2). Looking at the other elements necessary to satisfy Article 10(2), the Court also accepted that the aim was to protect interests of others, and therefore legitimate. The crucial questions related to whether the finding of liability was 'necessary in a democratic society' and proportionate.

The Court re-iterated its case law in this area, noting that the test of 'necessary' related to 'a pressing social need' and highlighting the importance of the role of the press in a democratic society as watchdog, citing Delfi at least for the first point (paras 54-55). The Court emphasised the unique nature of the Internet as a source of information before going on to summarise its previous case law on the right to reputation as protected by Article 8. In essence, the rights are of equal weight, neither one nor the other takes priority and the outcome of a given case should be the same whether it is considered under Article 8 or Article 10.

Applying these principles to the facts, the Court held that both applicants should be treated analogously to the press, as they provided a forum for public debate allowing others to express their ideas (para 61). The Court then equated the applicants to publishers but noted that the duties and responsibilities that they assumed as such differed from that of traditional publishers because of the nature of the Internet, citing Delfi and highlighting the 'clearly unlawful' nature of the speech in that case (paras 62-63 referring to Delfi, para 113). The Court noted certain differences between the two cases. First, the speech was offensive rather than clearly unlawful. Second, the regulatory body did not have a profit motive.

Considering the balancing between rights, the Court was critical of the national courts' immediate acceptance of the fact that harm had arisen from the statements without further investigation, and noted that there was a difference between the reputational harm that can be suffered by an individual and that which is suffered by a company. Despite this concern, the Court went on to apply the principles laid down in case such as von Hannover II, Axel Springer and Hachette Filipacchi as to factors to be taken into account in balancing between Article 8 ECHR (the right to privacy) and Article 10. The Court then returned to Delfi to add that, given the intermediary role of the company, additional factors were relevant:

The context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors as an alternative to the intermediaries' liability and the consequences of the domestic proceedings for the applicant company (para 69 citing 142-3 of the Delfi judgment).

While Delfi had involved hate speech, the court noted here that the same criteria would be relevant for assessing proportionality even when hate speech was not in issue.

The Court determined that the comments, relating to the malpractice of two large estate agents, were in the public interest. Moreover the comments were not gratuitous. The Court distinguished between the position of the news portal and that of the self-regulatory body, the latter being a forum for professional discussion rather than having a wide public audience. It also noted that the national courts paid no attention to the role that the applicants had played in generating the comments.  In the Court's view the national courts had paid inadequate attention to the role of the authors and the impact of their rulings on the applicants. It suggested that, while the domestic courts had found that in allowing unfiltered comments the applicants might have foreseen some difficulties with the content of the comments, this amounted to 'requiring excessive and impractical forethought capable of undermining the freedom to impart information on the Internet'.


The Court did not address the nature of the free speech rights which were the subject of the interference.  It did not have to because both sides accepted the point, though presumably the Court itself accepted the point.  There is an underlying question of whether those who are not speaking but providing a forum of facilitating the speech of others have expressive rights.  They clearly form part of the scope of freedom of expression when seen from the perspective of the speaker – in the same way publishers, museum and gallery curators do – but do they have free-standing rights?  This point has arisen before, for example in the Pirate Bay case, without much clarity being found as to why and to what extent any such right exists (see my analysis here). Pirate Bay was an admissibility decision, which may explain its brevity. 

Here at least we have some clarification of the point, albeit implicit. When applying the principles derived from its case law to the instant case, the Court ‘consider[ed] the nature of the applicants’ rights of expression in view of their role in the process of communication …’ and remarked that the applicants ‘provided forum for the exercise of expression rights, enabling the public to impart information and ideas’ [paras 60- 61].  The Court then equated the position of the applicants to that of the press [para 61]. 

While this gives us some starting point for assessing expression rights, this is still not clearly delineated.  What sort of forum needs to be provided for Article 10 to apply?  Remember, telecommunications and letters are protected by Article 8, indicating that at some point between internet social media platforms and internet access provisions there is a shift in protective mode, and one that shifts the focus of attention from the body providing the forum or mechanisms of communication to the primary speaker.  The linking of the forum to the role of the press seems to suggest that a key factor is the curating (rather than just moderating) function of the media in bringing stories to public attention for discussion.  The Court seems to be envisaging user comments almost in the vein of interviews on television, or letters to the editor:

the applicant’s liability is difficult to reconcile with the existing case-law according to which ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’ [para 79, citing Jersild, para 35].

Despite this, the Court’s concern also seems to be about the end-users ability to speak. The attitude is reflected in the Court’s later comment, that the imposition of liability on the applicants

may have foreseeable negative consequences on the comment environment of an Internet portal, for example by impelling it to close the commenting space altogether. For the Court, these consequences may have, directly or indirectly, a chilling effect on the freedom of expression of the Internet’ [para 86].

In this, we see reflections of the audience’s interests in much of the case law on journalism, which does not seem to go so far as to give audiences a right that is enforceable (see Akdeniz and contrast Cengiz.  As an aside, we might question whether the case of one news-based forum will affect the entire Internet, or whether the same reasons for protecting the forum which apply when topics of public interest are discussed apply also in the context of mundane and private matters. 

Re-focussing this question, we could ask the extent to which this reasoning protects all intermediaries, or whether the protection is limited to those which have a close connection with content.  This is particularly significant given that the Court has said that the principles applying to the press apply to MTE. Generally, the media attract a high level of protection, although in Delfi the Court focused on the duties and responsibilities of publishers rather than their rights, although it did recognize that the duties and responsibilities might differ from those of a traditional publisher {Delfi, para 113}. It also sought to limit its judgment narrowly rather than establishing principles for all fora [Delfi, para 116].

Accepting that a news portal in principle falls within Article 10, how did the Court distinguish Delfi? The answer seems to be in the weighting ascribed through the assessment of whether the restriction was ‘necessary in a democratic society’.  As in Delfi, the Court emphasizes that its role is not to re-make the decisions of the national courts but to assess whether the national courts carried out a due balancing between Article 8 and 10 (and it seemed unimpressed with the approach of the Hungarian courts – see para 88).  In this section of the judgment, we see multiple references to Delfi, as well as to the more general case law on Articles 8 and 10 in Axel Springer, von Hannover II etc. It is however questionable whether the Court refrained from second guessing the national courts in order to find a basis for the factual difference from Delfi. According to the Court, in Delfi the language used was clearly illegal, virtually hate speech, whereas here the speech was merely ‘offensive and vulgar’ (para 64).  While the Grand Chamber itself categorized the speech in Delfi as hate speech, the question is how clear the boundary is between that and the ‘offensive and vulgar’ in MTE. In Delfi, there is a single reference to a ‘sick Jew’, seemingly as a term of opprobrium, among many references to the person who is the subject of the story acting like a pig.  In MTE, one comment is translated as ‘people like this should go and s**t a hedgehog and spend all their money on their mothers’ tombs until they drop dead’ [at para 14].

Moreover there are instances where the Court confirms the approach in Delfi, and then justifies a different or narrower approach.  For example, at para 77, the Court first re-stated the approach in Delfi concerning the effects of defamation (referring to para 147 of that judgment) but then holds that the style of Internet communication reduces offence.

Finding that Hungarian courts had not sufficiently weighted freedom of expression and Article 8, the Court considered the notice and take-down regime. It re-stated the approach in Delfi and suggested that ‘if accompanied by effective procedures allowing for rapid response, the notice-and-take-down-system could function in many cases as an appropriate tool for balancing the rights and interests of all those involved’ [para 91, tracking the wording of Delfi, para 159]. The difficulty is that in endorsing the approach of the Grand Chamber, the Court has also endorsed the position that clearly unlawful speech (specifically hate speech) requires immediate action.  It is difficult to envisage a system that allows such immediate action that also does not also involve monitoring of all content. Yet, at para 82 of its judgment the Chamber criticizes the requirement for filters as ‘this amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impact information on the Internet’.

One final point concerns the commercial motivation of the parties.  The Court had distinguished between the two applicants, but did not draw through the consequences of this distinction. The commercial motivation in Delfi had been a factor in the ultimate finding of no infringement.  This is somewhat worrying, as many intermediary services are provided, directly or indirectly, for profit. In the Concurring Opinion of Judge Kuris we find the following statement [para 3]:

… this judgment should in no way be employed by Internet providers, in particular those who benefit financially from the dissemination of comments, whatever their contents, to shield themselves from their own liability … for failing to take appropriate measures against these envenoming statements.  If it is nevertheless used for that purpose, this judgment could become and instrument for (again!) whitewashing the Internet business model, aimed at profit at any cost. [emphasis in original]

So while MTE tempers the approach in Delfi, it is not a ringing endorsement of intermediary safe harbor either.  Clearly the Court has not yet developed a coherent theory about the approach to take to intermediaries and there are clearly issues about the style of speech on the Internet and the balance of protection there. As Kuris noted, MTE is the first judgment post-Delfi but it will not be the last.

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