Written by Dirk Voorhoof* and Eva Lievens* and originally published by ECPMF on 19.02.2016
The ECtHR recently decided that a self-regulatory body (Magyar Tartalomszolgáltatók Egyesülete, MTE) and an Internet news portal (Index.hu Zrt) were not liable for the offensive comments posted by their readers on their respective websites. Anonymous users of MTE and Index.hu Zrt had posted vulgar and offensive online comments, following the publication of an opinion on MTE and Index.hu Zrt criticising the misleading business practices of two real estate companies.
The operators of the websites immediately removed the allegedly offending comments once they were notified of the civil proceedings initiated by one of the real estate websites. Nevertheless the domestic courts found them liable for insult and for damaging the reputation of the real estate website at issue.
The Hungarian courts rejected the applicants’ argument that they were only intermediaries and that their sole obligation was to remove certain content, in case of a complaint. The European Court found that by holding MTE and Index.hu Zrt liable for the comments, the Hungarian courts had violated the right to freedom of expression as guaranteed by Article 10 ECHR.
The European Court considered that the Hungarian courts, when deciding on the notion of liability in the applicants’ case, had not carried out a proper balancing exercise between the competing rights involved, namely between the applicants’ right to freedom of expression and the real estate website’s right to respect for its commercial reputation. In case of hate speech and direct incitement to violence against individual persons, news portals can be held liable if they fail to remove such clearly unlawful comments without delay, even without notice. As in MTE and Index.hu Zrt v. Hungary the insulting and vulgar statements where not of such a kind, there was indeed no reason to impose liability on the portals' operators, as they had removed expeditiously, upon actual knowledge, the alleged offending content. The present judgment is the first in which the principles set forth in the controversial Grand Chamber’s judgment in Delfi AS v. Estonia are tested.
*Dirk Voorhoof, Human Rights Centre Ghent University (Belgium), Copenhagen University (Denmark), Legal Human Academy and member of the Executive Board of the European Centre for Press and Media Freedom (ECPMF, Germany)
*Eva Lievens, Ghent University and member of the Flemish Regulator for the Media (Belgium)
European Court of Human Rights