European Court of Human Rights hands down first ruling on liability for user comments after Delfi AS v Estonia.

The Fourth Section of the European Court of Human Rights has found that the Hungarian national courts’ decision that website operators Magyar Tartalomszolgáltatók Egyesültete (“MTE”) and Index.hu Zrt were liable for reader comments beneath a public interest article, was a violation of their right to freedom of expression under Article 10 of the European Convention on Human Rights.  Although free speech prevailed, the case should not be seen as redressing the balance disturbed by the much criticised ruling in Delfi AS v Estonia (Application no. 64569/09) which the court distinguished on the facts but whose problematic aspects it otherwise endorsed.

The article discussed the “unethical” practice of two real estate management companies.  Comments beneath the article criticised the real estate companies in a “low register of style”. While the article was in the public interest, the Hungarian courts found that the comments were offensive, insulting and humiliating. They went beyond the acceptable limits of freedom of expression and were “undoubtedly unlawful”.  By facilitating their dissemination, the website operators were objectively liable for them. The Hungarian law implementing the E-Commerce Directive (2000/31/EC) did not apply.  In ascertaining whether the Hungarian national courts had struck a fair balance between Article 10 and Article 8 ECHR (the latter guaranteeing the right to a private life encompassing the right to a reputation), the ECtHR applied the criteria laid down by the Grand Chamber in Delfi AS v Estonia. It noted that the style, as well as the content of expression was protected by Article 10. The comments, albeit of a low register of style were in a style common in communication on internet portals, a consideration that reduced the impact which could be attributed to them. The national courts had given no consideration to whether the actual authors of the comments could be liable. The domestic courts imposed objective liability on the applicants for “having provided space for injurious and degrading comments” and did not perform any examination of the conduct of either the website operators (who, notably, had a notice and take down system in place) or the plaintiffs (who had never requested pre-action that the applicants remove the comments).

For the ECtHR, this amounted to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the internet. Given the existing complaints made by consumer protection bodies against the plaintiffs, the ECtHR was not convinced that the comments in question were capable of having any additional or significant impact. There had been no evaluation of whether the comments reached the requisite level of seriousness to have any impact. Finally, the mere fact of finding website operators liable for user comments was liable to have a chilling effect of freedom of expression (irrespective of the level of damages awarded). The rigid stance adopted by the Hungarian national courts and the failure to carry out the requisite balancing exercise between the parties’ respective interests were sufficient for the ECtHR unanimously to conclude that there had been a violation of Article 10 (Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary (Application No. 22947/13) 2 February 2016 – to read the judgment click here).