No more fluttering/fleeting line between discrimination in employment and the right to freedom of expression: the CJEU judgment in NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford

Chiara De Capitani, Ph.D. Researcher in International Studies at the University of Naples "L'Orientale"

Introduction

Case C‑507/18 NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford (the present case), can be best summarized through the aviary metaphors used by Advocate General Eleanor Sharpston in her opinion (AG’s Opinion): the ruling balances freedom of expression with the “volatility” of discriminatory statements and analyses which roles members of associations can play in the fight against discrimination, whether they have beaks, wings and feathers or not (see more infra).

This Court of Justice of the European Union (CJEU) case raises many interesting issues and builds on the previous rulings of 2008 – C-54/07 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (Feryn) – and 2013 – C-81/12 Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării (Asociaţia Accept) rulings.

In all three cases, an employer (Feryn) or a person perceived as being capable of exerting a decisive influence on the recruitment policy of an employer (Asociatia Accept, present case) publicly stated that they would not hire a person from a protected category (ethnic minorities for Feryn, LGBTI* individuals for Asociaţia Accept and present case).

All three cases were brought forward by associations, with no identifiable complainant and, in the case of Asociatia Accept and the present case, the statements were released to the public while the employer had no ongoing or planned recruitment procedures.

Therefore, the Court tries to answer the following questions:

Can discriminatory statements fall under the scope of the directive when no recruitment procedures are ongoing? If so, following which criteria?

How can national Courts assess the balance between the right to freedom of expression and combating discrimination in employment and occupation?

Where no identifiable complainant can be found, can an association bring legal proceedings and ask to obtain pecuniary damages in circumstances that are capable of constituting discrimination?

Facts of the case

During an interview in a radio programme a lawyer (NH) stated that he would never hire a homosexual person to work in his law firm nor wish to use the services of such persons. At the time when he made those remarks, there was no current recruitment procedure open at NH’s law firm.

Having considered that NH had made remarks constituting discrimination on the ground of sexual orientation, the Associazione Avvocatura per i diritti LGBTI — Rete Lenford (the Associazione), brought proceedings against him, asking that he be ordered – among other sanctions – to pay damages to the Associazione for non-material loss.

The action was successful at first instance and upheld on appeal, therefore NH appealed once more in cassation before the Supreme Court of Cassation, Italy (the referring court).

The referring court expresses doubts as to whether the Associazione has standing to bring proceedings against NH and ask for pecuniary damages, since the case has no identifiable complainant. The referring court also asks whether NH’s statements – in light in particular of the absence of an open recruitment position – fall within the scope of Directive 2000/78 (the Anti-Discrimination Employment Directive) on the basis that they concern ‘access to employment’, or whether they should be regarded as mere expressions of opinion.

Analysis

Past, present, and possible future discrimination

NH believes that since there was no current or planned recruitment procedure at his law firm at the time he was interviewed, his statements should not be considered to have been made in a professional context and thus would fall outside of the scope of the Anti-Discrimination Employment Directive.

However, Article 3 (1) (a) of that Directive aims at protecting all persons, as regards both the public and private sectors: “in relation to conditions for access to employment”. Since the Directive is “a specific expression, in the areas that it covers, of the general prohibition of discrimination” laid down in Article 21 of the Charter of Fundamental Rights of the European Union (the Charter) and because of its objectives and the nature of the rights it seeks to safeguard, the Court notes that its scope, defined in Article 3, “cannot be defined restrictively”.

The Court has already found in the rulings Feryn and Asociaţia Accept that discriminatory statements can hinder the “access to employment” of a protected category. Indeed, as stated by Advocate General Maduro and recalled by both the Court and AG Sharpston in the present case: “in any recruitment process, the greatest ‘selection’ takes place between those who apply, and those who do not. Nobody can reasonably be expected to apply for a position if they know in advance that, because of their racial or ethnic origin, they stand no chance of being hired. Therefore, a public statement from an employer that persons of a certain racial or ethnic origin need not apply has an effect that is anything but hypothetical”.

Furthermore, discriminatory statements have a lasting effect in time.

In the Feryn ruling, the Court, interpreting Article 8 of Directive 2000/43 (The Race Equality Directive) - identical to Article 10 of the Anti-Discrimination Employment Directive - established that past statements create “presumption of a discriminatory recruitment policy” which the employer can rebut in Court.

The Court in the present judgment seems to confirm the duration in time, in the past, present but also possibly in the future, as it recognizes – in its answer to the first question – that statements made “outwith any current or planned procedure” can amount to discrimination as long they fulfil a number of non-hypothetical criteria (para 58), which we’ll examine now.

The interpretation of ‘access to employment’

Both the AG and the Court proceed by highlighting a list of criteria National Courts have to follow to establish when discriminatory statements present a sufficient link with ‘access to employment’ to fall under the scope of the Anti-Discrimination Employment Directive.

First, the status of the person making the statements and the capacity in which they made them, which must establish either that they are a potential employer or are, in law or in fact, capable of exerting a decisive influence on the recruitment policy or a recruitment decision of a potential employer, or, at the very least, may be perceived by the public or the social groups concerned as being capable of exerting such influence, even if they do not have the legal capacity to define the recruitment policy of the employer concerned or to bind or represent that employer in recruitment matters.

The latter point is particularly interesting given that both in Asociaţia Accept and in the present case both authors of the discriminatory statements, during their respective interviews, claimed and acted as if they played an important role and a very influential part in the recruitment process of their company (para 35, Asociaţia Accept; para 20, AG opinion), and were perceived as such by the public. However, ironically, their exact status within the company was either unclear (present case, para 43) or was becoming less important than what they were telling and presenting the public (Asociaţia Accept, para 32).

Furthermore, National Courts, following the Asociaţia Accept ruling, should consider as part of their assessment of this criteria whether the actual employer did or did not clearly distance itself from the statements concerned (para 41, present case).

The second criterion to consider is the nature and content of the statements concerned. They must relate to the conditions for access to employment or to occupation with the employer concerned and establish the employer’s intention to discriminate on the basis of one of the criteria laid down by the Anti-Discrimination Employment Directive. This has clearly been the case for all three rulings where three individuals publicly stated they would not hire ethnic minorities (Feryn) or LGBTI individuals (Asociaţia Accept, present case) within “their” company.

It’s interesting to note that in her opinion, the AG adds to these criteria that the statements must also “be of such a nature as to dissuade persons belonging to the protected group from applying if and when a vacancy with that potential employer becomes available” (para 55 of opinion). The Court does not add this element to the list of criteria but will consider it when assessing the interference of the Directive’s application with the right to freedom of speech (see infra).

Finally, the third criteria National Courts have to consider is the context in which the statements at issue were made “—in particular, their public or private character, or the fact that they were broadcast to the public, whether via traditional media or social networks — must be taken into consideration”.

Unfortunately, neither the Court nor the AG elaborate on why they believe this distinction between private and public statements is of such relevance. We can assume, given the AG’s beautiful paragraph at the beginning of her opinion, that public statements “have wings” and “travel fast and spread quickly”, meaning they are “disseminated rapidly and have consequences”. The likelihood that NH’s statements on the radio reached, hurt and affected many members of the LGBTI* community because of their publicity and fluttering in newspapers and social media is without question. However, as the AG herself notes “one can easily imagine the chilling effect of homophobic ‘jokes’ made by a potential employer in the presence of LGBTI applicants” (in a private setting, presumably). Since Feryn, Asociaţia Accept and the present case all concern public statements, hopefully the Court will elaborate on this aspect of “statements” made in a private setting at another time.

The interference with freedom of expression

The AG notes in her opinion that the referring court “expresses doubts as to whether NH’s statements fall within the scope of (the Anti-Discrimination Employment Directive) on the basis that they concern ‘employment’, or whether they should be regarded as mere expressions of opinion, unrelated to any discriminatory recruitment procedure” (para 25). Furthermore, she notes (para 37) that at the hearing the Italian Government emphasised that the statements were not made during a “serious broadcast with the participation of employers and news journalists” but during an “irony-filled programme of political satire”.

Both the AG and the Court proceed thus to examine why the above interpretation of the Anti-Discrimination Employment Directive is not affected by the possible limitation to the exercise of freedom of expression using the parameters provided by Article 52 (1) of the Charter which, as Professor Peers puts it, “deals with the arrangements for the limitation of rights”. Unsurprisingly, he notes: “the greatest volume of [EU] case law concerning the grounds for interference with rights relates to Article 10 ECHR on Freedom of expression”.

Indeed, the present case has sparked controversy also among some academics (Miller, Tanzarella) which believe the AG and the Court have failed to truly assess the proportionality between protection against discrimination and its interference with the right to freedom of expression - I do not believe this to be the case, especially in light on the “necessity requirement” that I will analyse further on.

Let’s flutter back to the ruling:

Professor Peers’ comments on the scope and interpretation of Article 52(1) of the Charter provide useful guidance to assess the judgment of the Court.

Article 52(1) of the Charter contains three different elements:

-          a procedural rule (limitations on rights ‘must be provided for by law’);

-          a rule on the justifications for limiting rights (‘objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’), and

-          several interlinked rules on the balancing test to be applied as between rights and limitations (the obligation to ‘respect the essence of’ the rights; the ‘principle of proportionality’; and the requirement of necessity).

The Court and AG go through all the above-cited elements in an orderly fashion.

The limitations to the exercise of the freedom of expression that may flow from the Anti-Discrimination Employment Directive are indeed provided for by law, since they result directly from that directive.

They respect the essence of the freedom of expression, since they are applied only for the purpose of attaining the objectives of said Directive, namely to safeguard the principle of equal treatment in employment and occupation and the attainment of a high level of employment and social protection; Further to this argument, the Court notes in paragraphs 37 and 38 of the ruling “recital 11 of the directive states that discrimination based inter alia on sexual orientation may undermine the achievement of the objectives of the FEU Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons. (The) Directive is thus a specific expression, within the field that it covers, of the general prohibition of discrimination laid down in Article 21 of the Charter”;

They respect the principle of proportionality in so far as the prohibited grounds of discrimination and the material and personal scope are defined in the directive, and the interference with the exercise of freedom of expression does not go beyond what is necessary to attain the objectives of the directive, in that only statements that constitute discrimination in employment and occupation are prohibited.

Finally, the Court elaborates with more detail the last requirement, the “necessity test”: the limitations to the exercise of freedom of expression arising from Anti-Discrimination Employment Directive are necessary to guarantee the rights in matters of employment and occupation of persons who belong to a protected group. The AG opinion underlines (in para 70) the following section of Article 10(2) of the European Convention on Human Rights (ECHR) which seems to be perfectly complementary with Art 52(1) of the Charter: “the exercise of (freedom of expression) carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society (…) for the protection of (…) rights of others”.

Analysing the “necessity test” from another perspective, the Court adds that considering statements as falling outside the scope of that directive solely because they were made “outwith a recruitment procedure, in particular in the context of an audiovisual entertainment programme, or because they allegedly constitute the expression of a personal opinion” could make the “very essence of the protection afforded by that directive in matters of employment and occupation (…) become illusory” (para 54 of the judgment).

Finally, the Court aligns itself with the AG opinion that “in any recruitment process, the principal selection takes place between those who apply, and those who do not” and mentions paragraph 57 of her opinion, where she quotes a section of AG Maduro’s opinion in Feryn: “(A) public statement from an employer that persons of a certain racial or ethnic origin need not apply has an effect that is anything but hypothetical. To ignore that as an act of discrimination would be to ignore the social reality that such statements are bound to have a humiliating and demoralising impact on persons of that origin who want to participate in the labour market and, in particular, on those who would have been interested in working for the employer at issue”.

Associations with standing to bring legal proceedings

The Court moves on to the first question: whether the Anti-Discrimination Employment Directive must be interpreted as precluding national legislation under which an association of lawyers whose objective is the judicial protection of persons having in particular a certain sexual orientation and the promotion of the culture and respect for the rights of that category of persons, automatically, on account of that objective and irrespective of whether it is a for-profit association, has standing to bring legal proceedings for the enforcement of obligations under that directive and, where appropriate, to obtain damages, in circumstances that are capable of constituting discrimination, within the meaning of that directive, against that category of persons and it is not possible to identify an injured party.

The Court analyses step by step the various facets of this complex question.

According to Article 9(2) of the Anti-Discrimination Employment Directive, Member States are to ensure that associations, organisations or other legal entities which have a legitimate interest in ensuring that the provisions of the directive are complied with, may engage, either on behalf or in support of a complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under the directive.

Since no injured party can be identified in the present case, Article 9(2) of the Directive does not require an association such as that at issue in the main proceedings to be given standing in the Member States to bring judicial proceedings. Nevertheless, Article 8(1) of the Anti-Discrimination Employment Directive provides that Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in that directive. This is the case for Italy where article 5 of its Legislative Decree n° 216/2003 provides that “trade unions, associations and organisations (…) shall also have standing in cases of collective discrimination where it is not automatically and immediately possible to identify individuals affected by the discrimination”.

Therefore, as was the case with Asociaţia Accept, the Court recalls that Article 9(2) of the Anti-Discrimination Employment Directive in no way precludes a Member State from laying down, in its national law, the right of associations with a legitimate interest in ensuring compliance with that directive to bring legal or administrative proceedings to enforce the obligations resulting therefrom without acting in the name of a specific complainant or in the absence of an identifiable complainant.

In those cases, it is for that Member State to decide under which conditions an association such as that at issue in the main proceedings may bring legal proceedings and for a sanction to be imposed in respect of such discrimination.

With regards to sanctions, the Court, quoting Asociaţia Accept, recalls that sanctions are required, in accordance with Article 17 of the Anti-Discrimination Employment Directive, to be effective, proportionate and dissuasive, regardless of whether there is any identifiable injured party. As noted by Djelassi and Mertens, sanctions can therefore, include the payment of pecuniary damages also in the present case where there is no identifiable complainant and no ongoing recruitment procedure.

Similarly, the Court leaves Member State to determine whether the for-profit or non-profit status of the association is to have a bearing on the assessment of its standing to bring such proceedings. The AG provides further insight on this issue: mentioning the written observations of the Greek Government, she analyses the possible risk that a profit-making association abusing the right to bring proceedings in order to enhance its profits, which, according to the Greek Government, would jeopardise the attainment of the objectives of the directive. First, she notes that given the uncertainty inherent in litigation a “trigger-happy” approach to launching actions would itself be “a risky strategy for a commercially minded association to adopt”. Secondly, it is the duty of the national court to verify if necessary that the Associazione is complying with its stated objectives to protect the interests of the persons in question and with its statutes as regards its status.

Although not repeated by the Court, another aspect of the AG’s opinion in this issue is worth mentioning: apparently NH had argued that the Associazione could not be considered to have a legitimate interest to enforce the rights and obligations deriving from Directive since its members were lawyers and trainee lawyers and supposedly they were not all LGBTI* persons. The AG Opinion finds this argument irrelevant and notes that “one does not require, of a public interest association dedicated to protecting wild birds and their habitats, that all its members should have wings, beaks and feathers”. She underlines that “there are many excellent advocates within the LGBTI community, who can and do speak eloquently in defence of LGBTI rights. That does not mean that others who are not part of that community – including lawyers and trainee lawyers motivated simply by altruism and a sense of justice – cannot join such an association and participate in its work without putting at risk its standing to bring actions”.

Conclusions

The present case fills a series of remaining gaps and completes the trilogy of rulings (Feryn, Asociaţia Accept, present case) on discriminatory statements made in a public setting against hiring employees from protected categories.

There are many more aspects that hopefully the Court will clarify in the future: what about statements made in a private setting? What about categories of individuals that are protected by Article 21 of the Charter but not by the scope of the Directive (discriminations based on social origin, genetic features, language, political or any other opinion, property, birth)? The abbreviation LGBTI is often used in the ruling, yet could the directive be considered to apply to members of that community other than homosexual and bisexual individuals?

Nevertheless, this case will likely have an important impact in the daily lives of LGBTI* individuals, whether they are thinking of applying for a job or currently working with a discriminating employer or persons with/perceived to have an influential role within the company.

Furthermore, as noted by Djelassi and Mertens, the implications of this case cover all groups of persons protected by the anti-discrimination directives.

This case is, in other words, pretty fly for a discrimination guide.

Barnard & Peers: chapter 20

Photo image: Wikicommons media – by Sergio D’Afflitto

Freedom to insult? Balancing freedom of expression with religious tolerance in ECHR case law

Professor Steve Peers, University of Essex

A recent judgment of the European Court of Human Rights has raised again the question of whether there should be limits on free speech when someone might be offended by it – in this case, concerning the Muslim faith. It’s a good opportunity to explain the context of the case and assess what – if any – limits should be acceptable on free speech in such cases.

Judgment

The saga of ES v Austria began at a public seminar on “Basic Information on Islam” organised by the institute of a right-wing Austrian political party. An undercover journalist complained to the police about some of the comments made at the seminar (in particular about Mohamed as inclined to pedophilia), and the speaker was prosecuted. She was ultimately convicted and ordered to pay a small fine as a penalty, for breach of Article 188 of the Austrian Criminal Code:

 “Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”

 The conviction was upheld on appeal throughout the national courts, and the applicant then complained to the European Court of Human Rights (ECtHR) that her right to freedom of expression under Article 10 of the European Court of Human Rights (ECHR) had been infringed. Since her free expression had obviously been penalised, the crucial issue in the case was whether the interference with that right was justified under Article 10(2) ECHR, which provides:

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The restriction in this case was “prescribed by law” (as can be seen above), and so the issue is whether the restriction was “necessary in a democratic society”. The Court began its assessment by reiterating (from its prior case law) that freedom of speech is “one of the essential foundations of a democratic society” and applies not just to statements that are “regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Article 10(2) provides “little scope…for restrictions on political speech or on debate on questions of public interest”. In particular, believers in a religion, “irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.”

Having said that, though, the “duties and responsibilities” referred to in Article 10 include (referring again to case law):

“the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 [freedom of religion] to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane….Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures….In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention.”

In this context, prior case law had concluded that ECHR Contracting States “enjoy a certain margin of appreciation” in this field – meaning that the ECtHR does not intensively review how they strike the balance between freedom of speech and the protection of religious sensibilities, in particular as there is no “uniform European conception” of how to strike this balance. Moreover, ECHR States also “have the positive obligation under Article 9 of the Convention of ensuring the peaceful co‑existence of all religions and those not belonging to a religious group by ensuring mutual tolerance”. (A “positive obligation” is a legal requirement for the State to take action to protect individual rights, not just to refrain from action such as banning speech or prosecuting people for their comments). A State “may therefore legitimately consider it necessary” to limit the free speech of some which is “judged incompatible with respect for the freedom of thought, conscience and religion of others”, although ultimately the ECtHR exercises some review over how a State strikes that balance in each particular case.

Prior case law has turned on whether a value judgment has sufficient factual proof to support it, and the ECtHR’s role is not “to take the place of the national authorities”, but to review if their decisions are based “on an acceptable assessment of the relevant facts…and whether the interference corresponded to a “pressing social need” and was “proportionate to the legitimate aim pursued””, in light of the “content of the statements” and “the context in which they were made”. Also, “the nature and severity of the penalty imposed are also factors to be taken into account”. If the national authorities have already applied such a balancing exercise in line with these criteria, “the Court would require strong reasons to substitute its view for that of the domestic courts”.

Applying those principles to this case, the subject matter was “particularly sensitive”, and so “the domestic authorities had a wide margin of appreciation” because “they were in a better position to evaluate which statements were likely to disturb the religious peace in their country”. The seminars in question were public, and Austrian law did not simply “incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance.” The national courts “extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation”, and the ECtHR agreed with the lower court “that presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society”.

The Court went on to agree with the national courts that in this case, value judgments did not have “sufficient factual basis”, and rejected the argument that “a few individual statements had to be tolerated during a lively discussion”. In the judges’ view, “it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable.” Finally, the Court took into account the very modest sanctions applied to the speaker.

Comments

Context

As noted at the outset, it’s necessary to explain the context of this case – given that it seems to be widely misunderstood. First of all, the ECtHR is not an “EU court” applying EU law, but the court of 47 European countries applying the ECHR, an international treaty separate from EU law. EU law touches on religious issues when it comes to religious discrimination in employment (see the case law discussed here), animal welfare issues, or persecution of refugees on grounds of religion – but has nothing to do with the issue of prosecution for offending religious sensibilities.

Secondly, the ECtHR is in no sense applying “Sharia law” here. The complaint was not made by a Muslim organisation, but by an undercover journalist. The Austrian law was not enacted solely to protect the Islamic faith, but other faiths too; and it was not motivated by Islamic doctrine. The ECtHR distinguishes the Austrian law from a ban on “blasphemy”, considering that it requires an additional element. Nothing in the judges’ reasoning refers to “defaming” Mohamed (although the Austrian Supreme Court is quoted as using that term).  Nor does the Court require other countries to follow Austria’s lead: although it refers to positive obligations to protect freedom of religion, it does not spell out what they are, for the obvious reason that the applicant was not arguing a failure by Austria of any positive obligations in this case.

Thirdly, as my summary of the judgment sets out, there’s nothing unusual or exceptional about the underlying legal reasoning in the Court’s approach here. It’s applying its long-standing doctrine related to the balance between freedom of expression and freedom of religion. This is indeed an area where the “margin of appreciation”, giving considerable deference to States’ choices, has long been applied widely, although States do not always win. (Have a look at the cases linked to in the judgment, or the summary in this fact sheet, for more details: note that there are judgments arguably deferential to Christianity, not just Islam).

Finally, on the same point, it should be noted that the Court, sometimes criticised for being activist, is in this case conversely criticised for being deferential to States. The judges leave the remedy for those who criticise the law in Austria (or similar laws elsewhere) as the political process in Austria, rather than the remote court in Strasbourg. But those who usually criticise foreign judges’ interference now seem disappointed that those foreign judges didn’t interfere to effectively endorse their own criticism of Islam.

Assessment of the judgment

Although some of the Court’s critics seem to have misunderstood the context of the judgment, I would agree that there is a lot in the judgment to criticise. What I would question here is both the Court’s application of its “margin of appreciation” doctrine to the facts of this case, and its failure to reconsider that doctrine in general. On the first point, while I agree that the small fine is relevant, it’s odd that the Court however fails to consider the absence of any complaint by a Muslim organisation as such, given that its reasoning turns on the importance of the objective of ensuring religious peace. Its distinction between marrying one child and a preference for children in general comes across as sophistry. And its concern that anyone could have attended the political seminar overlooks the broader context of an Internet full of critics of Islam: if the problem is a forest, does it make sense to prosecute an individual tree?

On the Court’s failure to reconsider its doctrine in general, there’s a procedural point here: the judgment was delivered by a small Chamber of few judges, not a Grand Chamber with many more; and only the Grand Chamber has the authority to reconsider long-standing jurisprudence. (The applicant can request the Grand Chamber to review this Chamber judgment). But I would hope that the Grand Chamber has the opportunity to do so, and uses it. Here’s why.

As a confirmed agnostic who attends Catholic mass, I can see the conflict of rights here in personal terms. Faith is at the core of many people’s personal identity. It inspires the spiritual, explains the inexplicable, and consoles the inconsolable; it provides a community to celebrate the breaking of fasts, the liberation from slavery or the miracle of resurrection. It celebrates birth, codifies life, and commemorates death – yet offers hope of immortality.

Yet I can see why some wish to condemn one faith, or all faiths. There’s no shortage of abuse, discrimination, persecution, hatred or violence based on religion. And some generally believe that all religions are nonsense: that in a scientific age, with lots of suffering before death that we should be concerned about, it’s long past time to go cold turkey on the opiate of the masses.

My answer to the potential conflict of rights is to respect others’ right to believe what they want to believe (or not believe). But others have a different view. And freedom of speech is not just the freedom to calm people down: it’s also the freedom to wind people up, turn people on, or piss people off.

The flaw with the Court’s traditional case law is that it places too much priority on the right not to be offended, and not enough on the right to offend. Indeed, the Court quotes – but does not explicitly follow – a report from the Venice Commission, which recommends that States should abolish the offence of blasphemy or religious insult (the latter, with added elements, seems to be the basis of its recent judgment) and rely solely instead on incitement to hatred. I would go further still, and criminalise only incitement to hatred which advocates violence or other criminality.

So “Muslims are vile; let’s attack them” should be criminal; as should the attack itself, or the criminal damage entailed by a swastika drawn on a synagogue. I take the point that swastikas don’t draw themselves, and that if someone merely says “Muslims are vile”, his listeners may well add “let’s attack them” in their own minds and act on it. But there needs to be a line drawn somewhere; a whole range of statements could trigger a potentially violent listener, so we have to exercise some judgement as to which statements should reasonably be criminalised.

Moreover, incriminating many critics of Islam (or others considered intolerant) who don’t directly advocate violence doesn’t solve the problem of intolerance; it fuels it, allowing those critics to parade themselves as free speech advocates, or even martyrs.  Prosecuting them for non-violent statements simply attracts more attention to their views. (This is also an answer to the valid “it’s easy to advocate freedom of speech when you’re not the target” arguments).

Two important qualifications, though. First of all, the freedom of expression is not a right to a platform: there’s no legal obligation for the mainstream media or social networks, for instance, to give any particular view uncritical attention, or any attention at all. Secondly, freedom of expression works both ways (that’s rather the point): it’s equally applicable to those who want to mock or react to Islamophobes or their ilk, and criticising someone’s views is not the same as “silencing” them. There’s nothing quite as pathetic as (for instance) the sight of the supporters of Trump’s crassness and intolerance crying crocodile tears in reaction to a comedian making a joke about his press secretary’s eye-shadow.

Ultimately, though, the problem with banning non-violent criticism of religion isn’t just about tactics; it’s about the paradox of intolerance. It’s logically impossible to preach tolerance while saying that dissenting views should be banned – even if those views are not very tolerant themselves. Fundamentally, a good idea – whether religious or secular – should speak for itself, not shut its critics up.  

Barnard & Peers: chapter 9

Photo: Islamic Centre, Vienna; photo credit: Wien.info

A Tale of Two Organs: Hate Speech Regulation in the European Context

Clotilde Pégorier, Lecturer in Law, University of Essex

The issue of hate speech regulation has again moved in recent years to the forefront of legal and political debate in Europe. To note that questions in this area are complex, and often generate diverging opinions as to the appropriate balance between legislation and the protection of rights, is no novelty. What is striking, however, is the marked difference in the tendencies of those “natural born twins” (Gabriel Toggenburg), the EU and the Council of Europe, in their respective approaches to hate speech. How might this be explained? And what, crucially, might be the wider legislative implications at European level?

The EU and the Fight Against Online Hate Speech

First, let us consider the EU’s efforts in this context, which might here be exemplified in relation to the battle against online hate speech. In response to the problem and threat of terrorism and radicalisation, and prompted in particular by the attack in Brussels on 22 March 2016, the EU decided to intensify its work on fighting hate speech – a campaign upon which they had embarked some eight years earlier with the adoption of the Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. As part of its security agenda for the period 2015-2020, the Commission presented, on 14 June 2016, a communication outlining action in seven specific areas where cooperation at EU level could effectively support Member States in preventing and countering radicalisation. Alert to the ever greater role played by the internet in the dissemination of views and ideologies, the European Commission took the step of consulting IT companies with the intention of creating legislation designed to inhibit the online spread of illegal content inciting violence.

In pursuing such an initiative, the Commission was, in fact, expanding upon longer-standing awareness of the importance of preventing the spread of hate speech via media forms. As Advocate General Yves Bot concluded in his Opinion from 5 May 2011 with respect to the cases C-244/10 and C-245/10:

Member states are to ensure that television broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality, must be interpreted as also prohibiting broadcasts which, in attempting to justify a group classify as a ‘terrorist’ organisation by the European Union, may create reactions of animosity or rejection between communities of different ethnic or cultural origin (para 93).

In May 2016, the European Commission had, moreover, already signed an online Code of Conduct on countering illegal hate speech online with four of the biggest internet companies – namely, Twitter, Facebook, YouTube and Microsoft. The code is not legally binding yet would appear to indicate a willingness on the part of the named IT companies to support the EU’s drive to prevent online hate – a willingness that owes in some measure, no doubt, to the protections supplied by Articles 12 to 14 of the e-Commerce Directive of 8 June 2000, commonly known as the ‘safe harbour’ provisions. According to Article 12, the provider of a service cannot be held liable for any information it transmits – including hate speech – as long as it: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. Article 14 limits the liability of providers of “information society services” still further when such services consist only of the “storage of information” provided by a recipient of the services. This provision only applies where the provider does not control or have knowledge of the illegal activity or information; or having gained knowledge or awareness of such illegal activity expeditiously removes or disables the links to the activity.

However we speculate on the primary motives of the IT companies, of prime significance is that they are assisting the EU in its fight against online hate speech. The Code encourages social media companies to take quick action as soon as a valid notification of online hate speech has been received, e.g. by removing or disabling access. It also underlines that, in order to combat the spread of illegal hate speech, “it is essential to ensure that relevant national laws transposing the Council Framework Decision 2008/913/JHA are fully enforced by Member States in the online as well as the in the offline environment.” With the adoption of the Council Framework Decision, the EU considered that Member states were permitted to enact criminal sanctions against anyone:

publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.

Reading such provisions takes us to the heart of one of the key dilemmas at the core of current debates on hate speech – namely, the definition and understanding of the concept itself. A brief excursus on this point seems warranted here. For the question of definition remains somewhat thorny – hate speech is a term that is, at once, both over- and underdetermined. As Anne Weber puts it in her Manual on Hate Speech for the Council of Europe in 2009:

No universally accepted definition of the term “hate speech” exists, despite its frequent usage. Though most States have adopted legislation banning expressions amounting to “hate speech”, definitions differ slightly when determining what is being banned.

This is undeniably true. Yet there are international and national sources that provide useful guidance. The Council of Europe’s Committee of Ministers’ Recommendation 97(20) on “Hate Speech” defined it as follows:

[T]he term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Also relevant here are the provisions of Art. 20, para. 2 of the International Covenant on Civil and Political Rights (ICPPR) of 1966, which stipulate that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” An authoritative interpretation of Art. 20, para. 2 is supplied by General Comment No. 34 by the Human Rights Committee, which reads:

What distinguishes the acts addressed in article 20 from other acts that may also be subject to limitations, is that for the acts addressed in article 20, the Covenant indicates the specific response required from the State: their prohibition by law. It is only to this extent that article 20 may be considered as lex specialis with regard to article 19 [which establishes other limitations on freedom of expression]. The acts referred to in article 20, paragraph 2, must cumulatively (a) advocate, (b) be for purposes of national, racial or religious hatred, and, (c) constitute incitement to discrimination, hostility or violence. By “advocacy” is meant public forms of expression that are intended to elicit action or response. By “hatred” is meant intense emotions of opprobrium, enmity and detestation towards a target group. “Incitement” refers to the need for the advocacy to be likely to trigger imminent acts of discrimination, hostility or violence. It would be sufficient that the incitement relate to any one of the three outcomes: discrimination, hostility or violence (para. 51).

This interpretation provides perhaps the fullest, and most useful, elucidation of hate speech – one that does most to capture its particular power to harm. Read in conjunction with modern understandings of the potential of online media to contribute to the dissemination of political views, and to generate and spread ‘hatred’, it casts particularly sharp light, moreover, on how, by enlisting the support of IT companies, the EU is taking a progressive – and legitimate – stand in trying to confront modern hate speech in one of its most threatening forms. 

The Council of Europe: The Protection of Freedom of Expression Over the Fight against (Online) Hate Speech?

The situation is somewhat different, however, in the case of the other main European organ, the Council of Europe, which appears to be taking a much more cautious approach. A latest manifestation of this has been in the Perinçek case, for instance, where the European Court of Human Rights (ECtHR) decided, on 15 October 2015, that Switzerland’s criminalisation of Doğu Perinçek for genocide denial constituted a violation of Article 10 of the European Convention on Human Rights (ECHR). The Court finding here was that the restriction on freedom of expression imposed by the Swiss authorities was not proportionate.

This is but the latest sign of a divergence in the attitudes and response from two European organs to the issue of hate speech, reflecting a breach within Europe with regards to the status of hate speech in relation to freedom of expression, the latter itself a fundamental notion of both the ECHR and the Charter of Fundamental Rights of the European Union (Article 11).

The prevention and prohibition of online hate speech has been on the agenda of the Council of Europe since at least 2001, when the Convention on Cybercrime was adopted. In 2003, an Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems was adopted. According to this Additional Protocol:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right: distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party. […]

In June 2016, however, at the same time that the EU Code of Conduct was adopted, the Council of Europe Secretary General, concerned about internet censorship, decided that rules for blocking and removing illegal content must be transparent and proportionate. This opinion came after his report on the state of democracy, human rights and the rule of law, based on a study conducted by the Swiss Institute of Comparative Law and identifying a number of shortcomings in some states,  became public.

In the report, the Secretary General clearly stated that:

In the majority of member states, the legal framework on blocking, filtering and removal of Internet content meets the requirements of being prescribed by law, pursuing legitimate aims and being necessary in a democratic society, in accordance with Article 10 of the Convention. Exceptions remain however, notably with regard to laws regulating hate speech and counter-terrorism (p. 33).

In view of this, one can understand why the Grand Chamber of ECtHR decided in the Perinçek case that the Swiss criminal provision was disproportionate and did not fulfil the criteria of being necessary in a democratic society. Yet Art. 261bis of the Swiss penal code provides that ‘any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity, […] is liable to a custodial sentence not exceeding three years or to a monetary penalty’. It is difficult to see how a criminal law could be much more transparent or clearer here. The decision to uphold Perinçek’s claim to a violation of Art. 10 ECHR certainly delivered a blow to the fight against hate speech at the EU level – as was duly noted by judges Spielmann (president of the Grand Chamber), Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris, in their joint dissenting opinion:

With regard to the finding that there was no obligation on Switzerland to criminalise the applicant’s statements (see paragraphs 258-68), we confess to having serious doubts as to the relevance of the reasoning. Can it not be maintained, on the contrary, that a (regional) custom is gradually emerging through the practice of States, the European Union (Framework Decision 2008/913/JHA) or ECRI (Policy Recommendation no. 7)? We would also note that beyond Europe, the United Nations Committee on the Elimination of Racial Discrimination has repeatedly recommended criminalising negationist discourse. Can all these developments be disregarded at a stroke by examining the case in terms of an alleged conflict of obligations? (para 10)

It thus seems that the Council of Europe is taking a retrogressive step in the fight against hate speech – both offline and online – as the laws in place regulating hate speech do not appear to be in line with the ECHR. The approach of the Council also lies in opposition to that being taken by the EU, rendering the position of EU members difficult: should they criminalise online hate speech, or should they rather grant greater weight to Art. 10 ECHR? Indeed, what if Switzerland was an EU member? By criminalising genocide denial as a form of hate speech liable to incite violence, as it initially did in the Perinçek case, Switzerland complied with the Framework Council decision. In so doing, however, it contravened Art. 10 of the ECHR and was thus found guilty of a violation by the ECtHR.

Conclusion

The question of how to square the protection of freedom of expression with the imposition of criminal sanctions for hate speech is, doubtless, one which is difficult. Yet wherever one draws the line between acceptable and unacceptable limits on freedom of expression, it seems apparent that, at the European level, the EU and the Council of Europe should be working together much more coherently in attempting to confront the issue of online (and offline) hate speech.  

To this end, the Council of Europe should liaise more closely with the EU – not least as the Secretary General, in his 2016 report, commented that:

-In addition to calling on member states to implement in full the recommendations in this report, I urge them to make clear their commitment to the European Convention on Human Rights and the Strasbourg Court. Our Convention system can never be taken for granted: it depends on the active and constructive engagement of all governments. By embedding these fundamental freedoms into the legal, political and social fabric of their nations, Europe’s leaders can build democracies which are more open and inclusive and, as a result, more secure (p.5)

In order to facilitate a more consistent approach across Europe, it seems clear that the European Court of Human Rights itself has to be prepared to allow for greater restrictions to be placed on freedom of expression, precisely as noted by the judges in their dissenting opinion in the Perinçek case. As long as the Strasbourg Court continues to permit freedom of expression to be used as a catch-all defence, it will remain extremely difficult to combat online hate speech and to develop a common European standard. Two measures thus seem necessary. Firstly, a common understanding of what hate speech is and entails should be striven for – the interpretation supplied by General Comment No. 34 by the Human Rights Committee provides useful initial orientation, not least in the manner that it explicates key notions of ‘incitement’ and ‘hatred’, and in the way that it outlines the possible effects of hate speech beyond physical violence. Secondly, there needs to be common agreement on the way in which such forms threaten democratic values – how they violate ‘the respect of the rights or reputations of others’ and may imperil ‘national security’, ‘public order’, or ‘public health or morals’, and thus constitute a legitimate restriction on freedom of expression provisions.

Barnard & Peers: chapter 9

JHA4: chapter II:6

Photo credit: European Centre for Press and Media Freedom

Freedom of expression and liability for Internet comments: a key new ECHR judgment

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.

Photo credit: universitypost.dk