By Oleg Soldatov
In 47 Council of Europe Member States freedom of expression both offline and online falls within the ambit of Article 10 of the European Convention on Human Rights (the “Convention”), which protects freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
In the judicial proceedings before the European Court of Human Rights (the “ECtHR”) the applicants often challenge either (a) the decisions of state authorities to hold the applicants liable for certain forms of expression, alleging violation of Article 10 of the Convention or (b) the failure of state authorities to hold third parties liable for expression vis-à-vis the applicants constituting the violation of Article 8, which covers a right to respect for one’s private and family life. In the latter situation an appropriate balancing between the right to freedom of expression and the right to privacy is necessary (Voorhoof et al, 2013, p. 26).
ECtHR pronouncements on the matter, so far
In the recent admissibility decision in Pihl v. Sweden the ECtHR has declared manifestly ill-founded, hence inadmissible, an application under Article 8 of the subject of a defamatory comment posted anonymously on a non-commercial website. The applicant, a Swedish national, previously lost a defamation case against the website owner and contested the decisions of the national courts dismissing his claim. This is a third time over the last two years that the ECtHR examined in detail the question of liability of a particular category of online intermediaries, namely, those websites that allow anonymous commentary of their content.
In the previous two judgements dealing with similar sets of facts, namely, Delfi AS v. Estonia and MTE and Index v. Hungary , the ECtHR reached seemingly diverging conclusions. In summary, in the first judgement, the ECtHR upheld imposing civil liability on a commercial online news portal for hosting rather extreme opinions expressed in the comments by anonymous users; the comments, which stayed online for six weeks, were judged to include elements of hate speech. The second judgement dealt with a similar situation, albeit the comments were considered to be milder. The applicants were one commercial and one non-commercial entity. In this case, the ECtHR decided that the civil liability imposed on the applicant entities for allowing certain comments to stay online was incompatible with guarantees provided by Article 10 of the Convention and constituted a disproportionate restriction on the applicants’ right to freedom of expression.
In the author’s view, the Pihl decision continues the direction the ECtHR has taken in deciding cases concerning the liability of online intermediaries on a case-by-case basis without providing the clear guidelines on the intermediaries’ conduct.
In this third case under scrutiny by the ECtHR, the comment upsetting the applicant was hosted on a blog run by a non-commercial association that did not employ any pre-screening techniques concerning the comments left by its readers. In fact, the blog stated that the comments had not been checked before publication and commentators were requested to “display good manners and obey the law”. The comment concerning the applicant contained an allegation that the latter was a “hash-junkie” and it stayed online for nine days. On a side-note, the comment was under the blog post accusing Mr Pihl of being involved in a Nazi party – a circumstance unimportant for the ECtHR for procedural reasons. The applicant sued the blog for defamation before the national courts, claiming that, inter alia, the association was also responsible for a failure to remove the comment immediately. The national courts accepted the defamatory nature of the comment but found no legal grounds on which to hold the association responsible for failing to remove it sooner than it had done.
The ECtHR made a note that the content of the comment about Mr Pihl was milder than that of the comments about Mr L in Delfi. Reliance on the differences between the facts of Delfi and Pihl drove the Court to the conclusion that the blog in Pihl could not be judged liable due to the following considerations:
- the comment about the applicant had nothing to do with the content of the blog post and could hardly have been anticipated by the association (while in Delfi the news portal “was in a position to predict the nature of the possible comments prompted by a published article”)
- the intermediary was a small non-profit association “unknown to the wider public, and it was thus unlikely that it would attract a large number of comments or that the comment about the applicant would be widely read” (while in Delfi the intermediary had a notable online presence);
- the notice-and-takedown system with a disclaimer about the lack of comment pre-moderation employed by the blog in Pihl was adequate and the time-span during which the comments stayed online (nine days versus six weeks in Delfi) was relatively short;
- the applicant did not take any steps to pursue the original author of the comment (whose trace was the French IP address);
- the domestic proceedings had no consequences for the association in the present case.
Thus, based on the analysis concerning (a) the context of the comments, (b) the measures applied by the company in order to prevent or remove defamatory comments, (c) the liability of the actual authors of the comments as an alternative to the intermediary’s liability, (d) the consequences of the domestic proceedings for the company, and (e) “especially the fact that the comment, although offensive, did not amount to hate speech or incitement to violence” the ECtHR found that “the domestic courts acted within their margin of appreciation and struck a fair balance between the applicant’s rights under Article 8 and the association’s opposing right to freedom of expression under Article 10.”
Towards Private Censorship and Deanonymisation?
Given the weight (note the word “especially” in relation to the content of the comment in the ECtHR’s conclusion) attributed to the fact that the comment in Pihl did not amount to hate speech or incitement to violence there are still issues sadly unaddressed by the ECtHR. One of them can be formulated as follows: in a counterfactual world, where the comments under the blog-post about Mr Pihl would be as harsh as those about Mr L in Delfi, but the remainder of the facts are to stay unchanged, could the ECtHR have supported the proposition of holding the blog-owner liable?
This “weight” hints that the harshness of the comment may have been the decisive factor in the ECtHR’s reasoning. If so, the notice-and-takedown system would not offer the same protection from liability to the website owners as a full scale comment pre-moderation facility or the ability to track down the original commentators with a view to shift the liability to them. A single unmoderated anonymous comment containing, for instance, an incitement to hatred, could be enough to trigger the liability of the website owner. Admittedly, there seem to exist just two ways for the website operators to fully protect themselves against such liability:
- to employ pre-moderation techniques and to filter or remove clearly unlawful content “on their own initiative”, an idea Prof Voorhoof (2017) cautioned against less than two weeks after the delivery of Pihl;
- preemptively require deanonymisation of online commentators – similarly, but wider in scope, to what is currently happening in Russia concerning popular bloggers under the recently-enacted Law No. 97-FZ, known as the “Bloggers Law”. This law requires a compulsory registration of all bloggers with more than 3 000 visits a day with the state Internet watchdog “Roskomnadzor”, disclosing their real identity.
Taking this into account, even though the Pihl decision, taken at face value, protected the online intermediary, the ECtHR reasoning seems to continue the thrust of pushing online intermediaries towards the strategies of either pre-moderation of comments (with the moral hazard of employing private censorship – see, for general discussion, The Closing of the Net by Monica Horten) or deanonymisation of commentators (removing those who would prefer to stay anonymous from online discussion altogether). Let us hope that the author’s rather pessimistic outlook would not be supported by future ECtHR’s case-law developments.
* Oleg Soldatov is a PhD researcher at Bocconi University in Milan, Italy. He used to work as a lawyer at the European Court of Human Rights in 2011-2014 and as a legal advisor at the Council of Europe in 2015-2016 Tags: