April 3, 2017

On 29 September 2011, a blog post was published accusing the applicant, Rolf Pihl, a Swedish national, of being involved in a Nazi party. The following day, a comment was posted anonymously stating, “that guy pihl is also a real hash-junkie according to several people I have spoken to”.

Following a complaint by Mr Pihl that the blog posting and the comment were incorrect, both publications were removed from the website and a statement that the blog had been incorrect, together with an apology, were posted by the not-for-profit association responsible for the website. However, according to Mr Pihl, it was still possible to find the old post and the comment on the internet via search engines.

Mr Pihl issued defamation proceedings against the association running the website in relation to both the blog post and the comment.

At first instance, the Swedish court found that the Stockholm District Court was the only court competent to hear the claim relating to the blog post. As for the comment, which had been allowed to remain on the website for nine days before being removed, the court found that the comment was defamatory, but there were no legal grounds on which to hold the association responsible for failing to remove it sooner than it had done.

Mr Pihl appealed, and the Court of Appeal upheld the lower court’s decision. The Supreme Court refused permission to appeal further.

Eventually, Mr Pihl took his case to the European Court of Human Rights, complaining under Article 8 of the Convention that the fact that Swedish legislation prevented him from holding the association responsible for the defamatory comment had violated his right to respect for his private life.

The question for the ECtHR was whether the Swedish State had achieved a fair balance between Mr Pihl’s right to respect for his private life under Article 8 and the association’s right to freedom of expression guaranteed by Article 10 of the Convention.

The ECtHR observed that the comment did not concern his political views and had nothing to do with the content of the blog post. It could not therefore have been anticipated by the association. The ECtHR also found that, since the association was a small non-profit association, unknown to the wider public, it was unlikely that it would have attracted a large number of comments or that the comment about Mr Pihl would have been widely read. Expecting the association to assume that some unfiltered comments might be in breach of the law would amount to requiring “excessive and impractical forethought capable of undermining the right to impart information via the internet”, the ECtHR said.

The ECtHR also noted that it was clearly stated on the blog that the association did not check comments before they were published and that commentators were responsible for their own statements. Further, the association had removed the blog post and the comment one day after being notified by Mr Pihl and had published an apology.

As for Mr Pihl’s assertion that the comment could still be found on the internet, the ECtHR noted that Mr Pihl was, pursuant to the decision of the Court of Justice of the European Union in Google Spain (EU:C:2014:317), entitled to request that search engines remove it.

The ECtHR also noted that it has previously found that liability for third-party comments may have negative consequences on the comment-related environment of an internet portal and thus a chilling effect on freedom of expression via internet. This effect could be particularly detrimental for a non-commercial website, it said.

Accordingly, and because the comment, although offensive, did not amount to hate speech or incitement to violence, the ECtHR found that the Swedish courts had acted within their margin of appreciation and had struck a fair balance between Mr Pihl’s rights under Article 8 and the association’s opposing right to freedom of expression under Article 10. (Rolf Anders Daniel Pihl
v Sweden no. 74742/14
— to read the judgment in full, click here).