On 2 February 2016, the Fourth Section of European Court of Human Rights handed down its judgment on intermediary liability in Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary (Application No. 22947/13)( ECHR 135). The judgment attempts to clarify the Grand Chamber’s findings in Delfi v. Estonia, whilst distinguishing that case on the basis that it involved “clearly unlawful speech” amounting to hate speech and incitement to violence. However, did the Court go far enough to protect free speech online?
This case concerned two Applicants, who were both operators of websites. The First Applicant, Magyar Tartalomszolgáltatók Egyesülete (MTE) was a self-regulatory body of content service providers in Hungary. As part of its regulatory activities, it operated an arbitration commission whose decisions were binding on its eleven members and published on its website. The Second Applicant, Index.hu Zrt, was the operator of a major Hungarian online news portal. Both Applicants allowed registered users to comment on their online publications, and they both published disclaimers to the effect that user comments did not reflect the Applicants’ own opinions and the authors of the comments were responsible for their content. The websites also indicated that comments infringing personality rights of others could not be uploaded to their website domains.
On 5 February 2010, MTE published an opinion piece concerning two real estate management websites. According to the piece, MTE had found the websites to have acted unethically in unilaterally and automatically charging users for its services following thirty days of free service. Index.hu subsequently published an opinion on the MTE story. Anonymous users of both websites posted comments claiming that the company operating the real estate management websites (the real estate company) was “sly”, “rubbish”, and a “mug company”. Another user commented that “[p]eople like this should go and shit a hedgehog and spend all their money on their mothers’ tombs until they drop dead”.
On 17 February 2010, the real estate company brought a civil action claiming an infringement of its personality rights on the basis that its right to a good reputation had been violated (Article 78 of the Hungarian Civil Code). The Applicants immediately removed the allegedly offending comments from their respective websites.
The Hungarian domestic courts found that the comments went beyond the acceptable limits of freedom of expression. The courts held that the Applicants could not rely on the protections available to intermediaries under the Hungarian law transposing EU Directive 2000/31/EC (Act No. CVIII of 2001). The Budapest Court of Appeal reasoned that this law only applied to information society-related services whose purpose was the sale, purchase or exchange of a tangible and moveable property. The Kuria (the Hungarian Supreme Court), on the other hand, found that the Applicants were not “intermediaries” under that law. The Kuria also stressed that, by allowing user comments on their website domains, the Applicants had assumed strict liability for any unlawful comments made by those users. Therefore, the mere fact that the comments were published on the Applicants’ website domains was enough to impose liability for infringement of the real estate company’s personality rights caused by those comments.
Following domestic proceedings, the Applicants were each ordered to pay a total of 116,000 HUF in court costs (including those costs incurred by the real estate company).
It was not in dispute between the parties that there had been an interference with the Applicants’ rights to freedom of expression under Article 10 ECHR. In the present case, the Court found that the Applicants could foresee, to a reasonable degree, the consequences of their activities under the domestic laws. In doing so, the Court placed considerable emphasis on the fact that the Applicants were a self-regulatory body and a media publisher running “a large internet news portal for an economic purpose”. As a result, the Court found that the interference was “prescribed by law”. The Court also accepted that the law pursued the legitimate aim of “protecting the rights of others”.
The Court then proceeded to make a number of interesting observations on whether the interference was “necessary in a democratic society”, they will be considered in turn.
Could Article 8 be relied on by the real estate company?
The Court did not find it necessary to reach a decision on whether a company could justifiably rely on its right to reputation under Article 8 ECHR. Nonetheless, it observed that there was a difference between a commercial reputational interest and the reputational interests of natural persons, the latter usually having an interest in protecting their dignity rather than their commercial success or viability. The Court decided to give the domestic courts “the benefit of the doubt” that there was to be a balancing between the Applicants’ Article 10 rights and the real estate company’s Article 8 rights in this case. However, it clearly had its reservations as to whether Article 8 ECHR was actually engaged.
Application of Delfi v. Estonia criteria
The Court then assessed whether the domestic courts correctly applied the Delfi v. Estonia criteria in their decisions. The Court recognised that these criteria were established in a case involving comments that amounted to hate speech and incitement to violence, but nonetheless deemed them to also be applicable to the present case. The relevant criteria were:
- Context and content of the impugned comments: The Court found there was a public interest context to the impugned comments, namely a debate involving consumer protection. The comments themselves were found to have been triggered by the frustration users had felt having been tricked by the real estate company. The Court also reasoned that, despite the fact the comments were on “a low register of style”, they were a common form of communication in the comments sections of Internet portals. The frequency of such comments on internet portals was found to reduce the impact that could be attributed to such comments. The Court also noted that the MTE website, as a website of a self-regulatory body, was unlikely to attract heated debate in its comments section.
- Liability of the authors of the comments: The Court was critical of the domestic courts for failing to consider the feasibility of identifying the users of the comments. For instance, the domestic courts did not investigate the system of registration that the Applicants had in place for their users. The Court also found it difficult to reconcile the imposition of strict liability on website portals for third-party content with the principle that journalists should only be punished for assisting in the dissemination of interviews with third-parties where there are strong reasons for doing so (see Jersild v. Denmark).
- Measures taken by the applicants and the conduct of the injured party: The Court noted the measures that had been adopted by the Applicants to prevent defamatory comments being made by third-parties (e.g. the disclaimer, the prohibition of comments injurious to others, and the “notice-and-take-down” procedure), and found that the domestic courts failed to perform any examination of the conduct of either parties. The Court also found that the domestic courts, in its reasoning that once content service providers allow unfiltered comments they should expect to be in breach of the law, had required excessive and impracticable forethought on the part of the Applicants that was capable of undermining freedom of expression online.
- Consequences of the comments for injured party: The Court found that the domestic courts failed to properly evaluate whether the comments reached a sufficient level of seriousness and whether they were made in a manner actually causing prejudice to a legal person’s right to professional reputation. In this regard, the Court noted that there had already been inquiries into the conduct of the real estate company which may have reduced the likelihood of the comments making any “additional and significant impact on the attitude of the consumers concerned”.
- Consequences for the Applicants: Despite the fact that the Applicants were not ordered to pay damages in this case, the Court considered it relevant that the finding of liability could have “negative consequences on the comment environment of an Internet portal”. The Court further reasoned that this “chilling effect” could be “particularly detrimental for a non-commercial website” such as MTE. With this in mind, the Court criticised the domestic courts for not taking heed of the consequences of their decisions on freedom of expression.
In light of the above, the Court found that there was a violation of the Applicants’ rights to freedom of expression under Article 10 ECHR. In reaching this conclusion, the Court opined that “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”.
For many freedom of expression advocates, the judgment of the Court in MTE and Index.hu v. Hungary will be a step in the right direction following Delfi v. Estonia. For instance, the Court was at pains to emphasise the specific facts in Delfi, a case which involved a news portal’s failure to take measures to remove “clearly unlawful comments” without delay following publication. In the present case, the Court was keen to attach weight to the sensible measures already adopted by the Applicants to prevent the publication of defamatory speech on its website domains.
The Court also wished to highlight that, in many cases, the “notice-and-take-down-system” could function as an appropriate way of determining intermediary liability, and considered it relevant in this case that the injured party did not request that the content be removed before pursuing litigation. The Court also conducted a much more realistic assessment as to the nature of posts found in the comments sections of websites and their potential impact on a legal person’s reputation.
Nonetheless, the Court’s endorsement of the “notice-and-take-down-system” still lags behind the intermediary liability jurisprudence in a number of other jurisdictions, such as India (Shreya Singhal v Union of India), Spain (Audiencia Provincial of Madrid, 9th Section, 19 February 2010), and Argentina (R.M.B c/Google y ot. s/ Ds y Ps), where courts have found that intermediaries should only be found liable for “unlawful” content when they have failed to take action following notice from a judicial (or other competent) authority as to the illegality of the relevant content. After all, Intermediary service providers are often less well-placed than courts to consider the lawfulness of comments on their website domains. Therefore, from a freedom of expression perspective at least, the Court could have afforded a greater level of protection to intermediaries not directly involved in the publication of “unlawful” third-party content.
Despite its finding of a violation of Article 10 ECHR, this judgment will not completely allay news websites’ concerns, following Delfi v. Estonia, as to the added litigation risks that may accompany their enabling of user comments. For instance, what constitutes “clearly unlawful comments” is still up for debate. Nevertheless, for many, it is a welcome step in the right direction.
Jonathan McCully is Junior Legal Officer at the Media Legal Defence Initiative.