By Oleg Soldatov
The European Court of Human Rights (hereinafter – the “Court” or “ECtHR”) has reiterated that freedom of expression, as protected by Article 10 § 1 of the European Convention of Human Rights (the “Convention”), constitutes an essential basis of a democratic society (Handyside v. the United Kingdom, 1976). In the same judgement the Court develops the idea that the freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”
At least in theory, it is hence characteristic for Article 10 to protect expression, even the one which carries a risk of damaging or actually damages the interests of others (Macovei, 2004). Usually, the opinions shared by the majority or by large groups do not run the risk of interference by the States; this is why the protection afforded by Article 10 also covers information and opinions expressed by small groups even where such expression shocks the majority (Macovei, 2004).
At the same time, it “may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance [...], provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued” (Erbakan v. Turkey, 2006).
One of the novel ways for imparting information on the Internet is through commentaries posted by third parties under the content published by online news portals. In this regard, such portals act as intermediaries (Synodinou, 2015) and serve as discussion boards for those who choose to comment on the published news items.
Freedom of expression in the online environment, including its application to the comments stemming from original work, has been a subject of heated debates for a long time (Voorhoof, 2015), especially given the proliferation of anonymity or pseudonimity of online users (Van der Nagel and Frith, 2015, with further references). Given that the strength of human rights protection in Europe today derives partly from their enforcement by the European Court of Human Rights (Douglas-Scott, 2006), it was inevitable that the Court would at some point adjudicate on the issue.
In the recent case of Delfi AS v. Estonia (2015) the ECtHR had to decide whether the civil liability imposed by the Estonian courts on Delfi (an Internet news portal) for the defamatory comments posted by readers below one of its online articles was compatible with Article 10 guarantees. Some of the comments were manifest expressions of hatred towards and threats to the physical integrity of a certain individual.
It is worth noting that the measures applied by Delfi in order to prevent or remove the defamatory comments included using a prior automatic filtering system of deletion of comments based on stems of certain vulgar words and a notice-and-take-down system. The latter meant that any reader could mark a comment as insulting, which would result in its subsequent removal. Moreover, the administrators of the portal had a possibility to remove inappropriate comments on their own initiative (Delfi v. Estonia, 2015).
The Court stated that Delfi’s way of handling public readers’ comments on its news portal was far from a passive, purely technical measure. Therefore, the provisions on the limited liability of Internet Service Providers did not apply (such provisions are laid down, for instance, in Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services; as well as the Declaration on freedom of communication on the Internet of the Council of Europe of 28 May 2003 and many other documents). According to the Court, Delfi exercised a substantial degree of control over the comments published, and, in the Court’s view, it was in a position to predict the nature of the possible comments prompted by a published article and to take technical or manual measures to prevent defamatory statements from being made public.
In particular, in §113 of the judgement, the Court concluded that “because of the particular nature of the Internet, the “duties and responsibilities” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content” (Delfi v. Estonia, 2015). The Court ultimately arrived at the decision that the civil liability imposed by the Estonian courts on Delfi did not constitute a disproportionate restriction on the applicant company’s right to freedom of expression.
In the end, Delfi was held liable for the content generated by its users. It can thus be concluded that, according to the Court, the list of “duties and responsibilities” the online news portals assume is also to include one rather peculiar duty. That is, the duty of predicting the reaction of the general public to certain controversial news items and employing more stringent techniques for moderation of user-generated content accordingly (on top of employing other, more well-defined techniques, such as the above mentioned “notice-and-takedown system”). At the same time, the Court does not elaborate how far should an online news portal go to ensure that its users would not cross the line with their potentially defamatory comments.
A more recent judgement by the Court, namely, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary (2016, hereinafter referred to as “MTE v. Hungary”) tackles a very similar set of circumstances. Specifically, the applicants before the ECtHR were two Hungarian websites (mte.hu and index.hu), one of which was a news portal. Both of them allowed user-generated comments to be published, and both were ultimately found liable for the defamatory nature of such comments. Similarly to Delfi, both websites also had a notice-and-takedown system in place.
It is important to note that there were also differences between Delfi and MTE cases – in the latter case one of the websites was a non-commercial entity. Notwithstanding these differences, at the core of these cases lies a range of offensive comments published by website users, albeit in MTE the language of the comments did not include direct incitements to violence and the offended entity was a legal person.
Ultimately, in the MTE case the Court did find a violation of Article 10. On the surface, it appears that the filtering techniques utilised by Delfi, MTE and index.hu were similar – in both cases the applicants mostly relied on the notice-and-takedown systems. It was the content of the comments, and, more specifically, the degree of harshness of the language, that was a decisive factor swaying the opinion of the European Court of Human Rights as to whether the violation of Article 10 of the Convention took place.
Returning to the opinion pronounced by the Court in the Delfi case, according to which the latter “was in a position to predict the nature of the possible comments prompted by a published article,” one may pose a question whether indeed having such prediction skills is from now on a requirement for online news editors? Is it actually possible for editorial teams of online news portals to anticipate in advance whether certain articles would provoke web-users to post hate-speech-filled comments?
Last but not least, an extra layer of complexity is added by the proliferation of so-called “trolls” on the Internet, whose conduct is defined as a repetitive, disruptive online deviant behaviour aimed at other individuals or groups and whose intentions are to trigger or exacerbate conflict for the purposes of their own amusement (Fichman and Sanfilippo, 2016). In theory, nothing precludes such “trolls” from posting a violence-inducing comment under an online article completely devoid of controversy – what should a website’s modus operandi be in a situation when it is all of a sudden overrun by “trolls”? All of these issues, sadly, remain unanswered in Delfi and MTE.
To sum up, at present the members of the online community remain at the edges of their seats, waiting for additional explanations from the Court on the issue of intermediary liability of online news portals for user-generated content. More specifically, further clarifications are awaited concerning the techniques to be employed to deal with the comments that may have signs of hate speech.
We can only hope that, as Voorhoof (2015) eloquently puts it, “the European Court of Human Rights will keep up its high standards of protection and promotion of the right to freedom of expression and information, also in the new media environment”.
Council of Europe (2015), Freedom of Expression: Still a Precondition for Democracy? Webcast of the conference from 14 October 2015 (morning session) [video ] [Accessed 12 August 2016]
Council of Europe, Declaration on Freedom of Communication on the Internet , adopted by the Committee of Ministers on 28 May 2003 at the 840th Meeting of the Ministers' Deputies [Accessed 18 September 2016]
Delfi AS v. Estonia (Grand Chamber), No. 64569/09, European Court of Human Rights, 16 June 2015.
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [Accessed 13 September 2016]
Douglas-Scott, S. (2006), A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis. Common Market Law Review, 43, pp.629-665
Erbakan v. Turkey, No. 59405/00, European Court of Human Rights, 6 July 2006
Fichman, P. and Sanfilippo, M. (2016), Online Trolling and Its Perpetrators. London: Rowman & Littlefield
Handyside v. the United Kingdom (1976), No. 5493/72, European Court of Human Rights, 7 December 1976
Harris, D. (2009), Law of the European Convention on Human Rights, 2nd ed. Oxford: Oxford University Press
Macovei, M. (2004), Freedom of Expression. A Guide to the Implementation of Article 10 of the European Convention of Human Rights. 2nd ed. Strasbourg: Council of Europe
Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, No. 22947/13, European Court of Human Rights, 2 February 2016
Synodinou, T. (2015), Intermediaries' liability for online copyright infringement in the EU: Evolutions and confusions. Computer Law & Security Review, 31(1), pp.57-67
Van der Nagel, E. and Frith, J. (2015), Anonymity, Pseudonymity, and the Agency of Online Identity: Examining the Social Practices of r/Gonewild. First Monday, 20(3)
Voorhoof D. et al (2015), Freedom of Expression, the Media and Journalists: Case-law of the European Court of Human Rights.European Audiovisual Observatory, Strasbourg, 2015
* Oleg Soldatov is a PhD researcher at Bocconi University in Milan, Italy. He worked as a lawyer at the European Court of Human Rights from 2011 until 2014 and as a legal advisor at the Council of Europe from 2015 until August 2016 - Contact: email@example.com Tags:
Defamation and Libel