Lorna Woods,
Professor of Internet Law, University of Essex
Should
the providers of internet sites be liable for the comments which people make on
them? The European Court of Human Rights had addressed this issue in important recent judgment: MTE v. Hungary.
Given
the importance of intermediaries to the development of the internet, there are
policy grounds for suggesting that intermediaries should not be treated in a
manner analogous to a (knowing) publisher in the off-line environment, but
should instead be provided with some level of immunity from suit in respect of
the views of others. Last year in Delfi (which I discussed here) the
Grand Chamber of the European Court of Human Rights ruled that the holding of a
newspaper portal liable for the comments of end users was not a violation of the
freedom of expression, as guaranteed by Article 10 ECHR. That decision was much
criticised.
The
issue of the liability of an on-line newspaper for the comments of its readers has
now come before the Court again. In this case, however, the Court’s chamber,
while referring at a number of points in its judgment to the reasoning of the Delfi Grand Chamber, came to a different
conclusion from that in Delfi. In so doing,
has the Court departed as a matter of legal principle from its previous
approach, or are the facts sufficiently different from Delfi so as to justify a different outcome on that basis? Given this difference, MTE although not the
first case on intermediary liability, is important in showing the development
of the Court’s thinking in respect of the internet.
Facts
There
are two applicants: a company which runs a news portal; and a non-profit organization,
which is the self-regulatory body of the internet content providers in Hungary.
Each carried a story on their respective web sites about the behaviour of an on-line
estate agency, claiming it did not adhere to high consumer protection
standards. In response to the story,
there were a number of comments from end users. The owner of the estate agency
sites brought a civil action against the two applicants in respect of the
original opinion and some of the comments in response to it. At this point the
applicants removed the challenged content. The applicants argued that they were
not responsible for third party comments. The highest national court disagreed even
though, during the litigation process, various national courts adopted
different approaches to reasoning and even outcome in this case.
Judgment
The
European Court of Human Rights noted that there was no dispute that there had
been an interference with the applicants' freedom of expression. The main issue
before the Court was the justification for that interference under Article
10(2) ECHR. The Court re-capped the general principles applicable to such an
assessment: lawfulness, legitimate aim and proportionality. While the national
courts gave different reasons for the application of the law imposing
liability, the Court nonetheless found that, given that the applicants were
engaged in their activity professionally, they were in a position to assess the
risks and that therefore the law on which the interference was based was
sufficiently foreseeable to be regarded as lawful as required by Article 10(2).
Looking at the other elements necessary to satisfy Article 10(2), the Court
also accepted that the aim was to protect interests of others, and therefore
legitimate. The crucial questions related to whether the finding of liability
was 'necessary in a democratic society' and proportionate.
The
Court re-iterated its case law in this area, noting that the test of
'necessary' related to 'a pressing social need' and highlighting the importance
of the role of the press in a democratic society as watchdog, citing Delfi at least for the first point
(paras 54-55). The Court emphasised the unique nature of the Internet as a
source of information before going on to summarise its previous case law on the
right to reputation as protected by Article 8. In essence, the rights are of
equal weight, neither one nor the other takes priority and the outcome of a
given case should be the same whether it is considered under Article 8 or
Article 10.
Applying
these principles to the facts, the Court held that both applicants should be
treated analogously to the press, as they provided a forum for public debate
allowing others to express their ideas (para 61). The Court then equated the
applicants to publishers but noted that the duties and responsibilities that
they assumed as such differed from that of traditional publishers because of
the nature of the Internet, citing Delfi
and highlighting the 'clearly unlawful' nature of the speech in that case (paras
62-63 referring to Delfi, para 113). The
Court noted certain differences between the two cases. First, the speech was
offensive rather than clearly unlawful. Second, the regulatory body did not
have a profit motive.
Considering
the balancing between rights, the Court was critical of the national courts'
immediate acceptance of the fact that harm had arisen from the statements
without further investigation, and noted that there was a difference between the
reputational harm that can be suffered by an individual and that which is
suffered by a company. Despite this concern, the Court went on to apply the
principles laid down in case such as von
Hannover II, Axel Springer and Hachette Filipacchi as to factors to be
taken into account in balancing between Article 8 ECHR (the right to privacy)
and Article 10. The Court then returned to Delfi
to add that, given the intermediary role of the company, additional factors
were relevant:
The context of the
comments, the measures applied by the applicant company in order to prevent or
remove defamatory comments, the liability of the actual authors as an
alternative to the intermediaries' liability and the consequences of the
domestic proceedings for the applicant company (para 69 citing 142-3 of the Delfi judgment).
While
Delfi had involved hate speech, the
court noted here that the same criteria would be relevant for assessing
proportionality even when hate speech was not in issue.
The
Court determined that the comments, relating to the malpractice of two large
estate agents, were in the public interest. Moreover the comments were not
gratuitous. The Court distinguished between the position of the news portal and
that of the self-regulatory body, the latter being a forum for professional
discussion rather than having a wide public audience. It also noted that the
national courts paid no attention to the role that the applicants had played in
generating the comments. In the Court's
view the national courts had paid inadequate attention to the role of the
authors and the impact of their rulings on the applicants. It suggested that,
while the domestic courts had found that in allowing unfiltered comments the
applicants might have foreseen some difficulties with the content of the
comments, this amounted to 'requiring excessive and impractical forethought
capable of undermining the freedom to impart information on the Internet'.
Comment
The
Court did not address the nature of the free speech rights which were the
subject of the interference. It did not have
to because both sides accepted the point, though presumably the Court itself
accepted the point. There is an
underlying question of whether those who are not speaking but providing a forum
of facilitating the speech of others have expressive rights. They clearly form part of the scope of
freedom of expression when seen from the perspective of the speaker – in the
same way publishers, museum and gallery curators do – but do they have
free-standing rights? This point has
arisen before, for example in the Pirate Bay case, without much clarity being found as to why and to what extent any such right
exists (see my analysis here). Pirate
Bay was an admissibility decision, which may explain its brevity.
Here
at least we have some clarification of the point, albeit implicit. When
applying the principles derived from its case law to the instant case, the
Court ‘consider[ed] the nature of the applicants’ rights of expression in view
of their role in the process of communication …’ and remarked that the
applicants ‘provided forum for the exercise of expression rights, enabling the
public to impart information and ideas’ [paras 60- 61]. The Court then equated the position of the
applicants to that of the press [para 61].
While
this gives us some starting point for assessing expression rights, this is
still not clearly delineated. What sort
of forum needs to be provided for Article 10 to apply? Remember, telecommunications and letters are
protected by Article 8, indicating that at some point between internet social
media platforms and internet access provisions there is a shift in protective
mode, and one that shifts the focus of attention from the body providing the
forum or mechanisms of communication to the primary speaker. The linking of the forum to the role of the
press seems to suggest that a key factor is the curating (rather than just
moderating) function of the media in bringing stories to public attention for
discussion. The Court seems to be
envisaging user comments almost in the vein of interviews on television, or
letters to the editor:
the applicant’s
liability is difficult to reconcile with the existing case-law according to
which ‘punishment of a journalist for assisting in the dissemination of
statements made by another person in an interview would seriously hamper the
contribution of the press to discussion of matters of public interest and
should not be envisaged unless there are particularly strong reasons for doing
so’ [para 79, citing Jersild, para 35].
Despite
this, the Court’s concern also seems to be about the end-users ability to
speak. The attitude is reflected in the Court’s later comment, that the
imposition of liability on the applicants
‘may have foreseeable negative
consequences on the comment environment of an Internet portal, for example by
impelling it to close the commenting space altogether. For the Court, these
consequences may have, directly or indirectly, a chilling effect on the freedom
of expression of the Internet’ [para 86].
In
this, we see reflections of the audience’s interests in much of the case law on
journalism, which does not seem to go so far as to give audiences a right that
is enforceable (see Akdeniz and
contrast Cengiz. As an aside, we might question whether the
case of one news-based forum will affect the entire Internet, or whether the
same reasons for protecting the forum which apply when topics of public
interest are discussed apply also in the context of mundane and private matters.
Re-focussing
this question, we could ask the extent to which this reasoning protects all
intermediaries, or whether the protection is limited to those which have a
close connection with content. This is
particularly significant given that the Court has said that the principles
applying to the press apply to MTE.
Generally, the media attract a high level of protection, although in Delfi the Court focused on the duties
and responsibilities of publishers rather than their rights, although it did
recognize that the duties and responsibilities might differ from those of a
traditional publisher {Delfi, para
113}. It also sought to limit its judgment narrowly rather than establishing
principles for all fora [Delfi, para
116].
Accepting
that a news portal in principle falls within Article 10, how did the Court
distinguish Delfi? The answer seems
to be in the weighting ascribed through the assessment of whether the
restriction was ‘necessary in a democratic society’. As in Delfi,
the Court emphasizes that its role is not to re-make the decisions of the
national courts but to assess whether the national courts carried out a due
balancing between Article 8 and 10 (and it seemed unimpressed with the approach
of the Hungarian courts – see para 88).
In this section of the judgment, we see multiple references to Delfi, as well as to the more general
case law on Articles 8 and 10 in Axel
Springer, von Hannover II etc. It is however questionable whether the Court
refrained from second guessing the national courts in order to find a basis for
the factual difference from Delfi.
According to the Court, in Delfi the
language used was clearly illegal, virtually hate speech, whereas here the
speech was merely ‘offensive and vulgar’ (para 64). While the Grand Chamber itself categorized
the speech in Delfi as hate speech,
the question is how clear the boundary is between that and the ‘offensive and
vulgar’ in MTE. In Delfi, there is a single reference to a
‘sick Jew’, seemingly as a term of opprobrium, among many references to the
person who is the subject of the story acting like a pig. In MTE,
one comment is translated as ‘people like this should go and s**t a hedgehog
and spend all their money on their mothers’ tombs until they drop dead’ [at
para 14].
Moreover
there are instances where the Court confirms the approach in Delfi, and then justifies a different or
narrower approach. For example, at para
77, the Court first re-stated the approach in Delfi concerning the effects of defamation (referring to para 147
of that judgment) but then holds that the style of Internet communication
reduces offence.
Finding
that Hungarian courts had not sufficiently weighted freedom of expression and
Article 8, the Court considered the notice and take-down regime. It re-stated
the approach in Delfi and suggested
that ‘if accompanied by effective procedures allowing for rapid response, the
notice-and-take-down-system could function in many cases as an appropriate tool
for balancing the rights and interests of all those involved’ [para 91,
tracking the wording of Delfi, para
159]. The difficulty is that in endorsing the approach of the Grand Chamber,
the Court has also endorsed the position that clearly unlawful speech
(specifically hate speech) requires immediate action. It is difficult to envisage a system that
allows such immediate action that also does not also involve monitoring of all
content. Yet, at para 82 of its judgment the Chamber criticizes the requirement
for filters as ‘this amounts to requiring excessive and impracticable
forethought capable of undermining freedom of the right to impact information
on the Internet’.
One
final point concerns the commercial motivation of the parties. The Court had distinguished between the two
applicants, but did not draw through the consequences of this distinction. The
commercial motivation in Delfi had
been a factor in the ultimate finding of no infringement. This is somewhat worrying, as many
intermediary services are provided, directly or indirectly, for profit. In the
Concurring Opinion of Judge Kuris we find the following statement [para 3]:
… this judgment
should in no way be employed by Internet providers, in particular those who
benefit financially from the dissemination of comments, whatever their
contents, to shield themselves from their own liability … for failing to take
appropriate measures against these envenoming statements. If it is nevertheless used for that purpose,
this judgment could become and instrument for (again!) whitewashing the
Internet business model, aimed at profit at any
cost. [emphasis in original]
So
while MTE tempers the approach in Delfi, it is not a ringing endorsement
of intermediary safe harbor either.
Clearly the Court has not yet developed a coherent theory about the
approach to take to intermediaries and there are clearly issues about the style
of speech on the Internet and the balance of protection there. As Kuris noted, MTE is the first judgment post-Delfi but it will not be the last.
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