In a judgment handed down on 19 March 2019 (Høiness v Norway, no 43624/14), the European Court of Human Rights (“ECtHR”) refused to impose liability on an Internet forum for anonymous comments that had been published on its site.
The claim arose from the publication of three purportedly defamatory comments about a prominent Norwegian lawyer, Mona Høiness (pic). The comments were posted on a discussion forum operated by a Norwegian news portal.
In November 2010, a series of objectifying and vulgar comments about Høiness were posted on an discussion forum operated by the online news portal Hegnar Online. The discussion forum was distinct from the editorial content of the online edition.
Høiness brought proceedings before the Oslo City Court against Hegnar Media AS and an editor, Mr H, for defamation. She claimed that her honour had been infringed because of sexual harassment, and that the defendants had the same editorial responsibility for the comments as if they had been letters from readers printed in a newspaper.
Decision of the City Court
The City Court ruled in favour of the defendants. It held that the comments did not amount to unlawful defamation because they were incapable of offending Høiness’s honour or reputation. The City Court considered the comments tasteless and inappropriate but were generally unserious.
Høiness was ordered to pay the defendants’ costs. In making its order, the City Court took into account that Høiness had turned down an offer of settlement but also that the amount claimed by the defendants was excessive.
Proceedings before the High Court
Høiness appealed the decision of the City Court to the High Court. In addition to the claim for defamation, she advanced three further arguments: that her right to privacy had breached; that her rights concerning the protection of personality had been breached; and that the comments had breached the Gender Equality Act.
Although the High Court considered that Høiness had been right to react to the statements complained of, it held that the lack of culpability of the defendants meant that they could not be held liable for any harm suffered as a result of the comments. The Court noted the presence of warning buttons on the website as well as staff undertaking a moderator role on the forum. Further, it appeared that in all instances, the defendants had acted with sufficient rapidity in taking down the comments, which precluded any suggestions of liability on the part of Hegnar Online.
The High Court upheld the City Court’s decision on costs.
Proceedings before the Supreme Court
In addition to appealing the High Court’s decision on liability, Høiness appealed the decision on costs. She argued that the amount charged by counsel for the defendants’ was so high that there would be a chilling effect on the willingness of individuals to challenge purported violations of Article 8 of the European Convention on Human Rights (“ECHR”).
The Supreme Court refused the application for leave to appeal against either the judgment as a whole or the decision on costs. Høiness consequently brought her appeal to the ECtHR.
Having stated the general principles regarding the competing interests between Articles 8 and 10 ECHR, the Court set out the relevant aspects of freedom of expression where the liability of an online publisher for publication anonymous comments is in question, as articulated in Delfi AS v Estonia [GC], no. 64569/09, § 137, ECHR 2015. Namely: the context of the comments; the measures applied by the company in order to prevent or remove defamatory comments; the liability of the actual authors of the comments as an alternative to the intermediary’s liability; and the consequences of the domestic proceedings for the company (at ).
The ECtHR noted that the comments were found not to constitute defamation by the City Court, and the High Court considered it unnecessary to take a stance on whether the comments were defamatory.
However, the ECtHR accepted that Høiness would have faced considerably difficulties in attempting to pursue claims against the anonymous posters.
Nonetheless, the ECtHR observed that although Hegnar Online was a large commercial news portal, the debate forums in which the impugned comments were found were unlikely to be considered as a continuation of its editorial articles.
Finally, the ECtHR took into account the monitoring and moderating system that Hegnar Online had put into effect. It noted that there was an established system of moderators who monitored content, interactive ‘warning’ buttons that readers could use to notify their reaction to comments, as well as the ability for readers to give warning by other means, such as email.
Having regard to the above, the ECtHR found no reason to substitute a different view for that of the domestic courts. Further, it held that the domestic courts had acted within their margin of appreciation when seeking the balance between Høiness’s Article 8 rights and the opposing right of expression under Article 10 of Hegnar Media AS.
Turning then to the purported chilling effect caused by the costs order made against Høiness, the ECtHR held that, in the circumstances of the case, there was no reason to question the domestic courts’ assessment of the imposition of costs. It was satisfied that the domestic courts sufficiently safeguarded the applicant’s Article 8 rights and that there had been no violation.
Accordingly, the ECtHR held that there had been no violation of Article 8.
There are two elements of the decision in Høiness that are of particular note.
First, the ECtHR has continued to demonstrate a willingness to avoid imposing liability on online publishers for comments made by third party actors, thereby constraining the impact of its decision in Delfi AS. However, it is important to note that the mechanism used to achieve this result flows from Delfi AS: the case set the precedent that an attack on personal honour and reputation must be sufficiently serious before Article 8 ECHR will come into play (Delfi AS at ; Høiness at ).
Secondly, it is unclear how the decision in Høiness will interact with proposed domestic legislation put forward by British government that would impose a duty of care on online platforms to protect users from, amongst other things, material which is lawful but harmful.
In addition to reiterating the test of sufficient seriousness in Delfi AS, the ECtHR also considered it unnecessary to examine the nature of the impugned comments in depth because they did not amount to unprotected speech, such as hate speech or incitement to violence (at ). Therefore, the threshold that must be surpassed before liability is imposed by the Strasbourg court is a high one. However, the bar for liability at the domestic level may be set considerably lower, making it difficult for domestic decision-makers to impose the domestic legislation whilst adhering to their obligations to apply the legal principles flowing from the ECHR and ECtHR.
Samuel Rowe is a student at the University of Oxford.