- Lynn Pype - Griet Verfaillie
- EU , Internet content provider , freedom of expression , commercial website , opportunity to respond , author , notice-and-takedown , infringing reaction , defamatory comments
On 9 February 2016, the European Court of Human Rights made another pronouncement concerning the
liability of Internet Providers, and more specifically the liability of Internet news websites for
the comments posted on them by their users.
This is not the first time the Court has been obliged to consider this issue. The Court pronounced concerning a similar matter, in the Delfi v Estonia ruling of 16 June 2015, which was discussed in a previous article on our website.
Are Internet Providers liable for their users' responses?
The articles provoked several reactions, which the owner of the real estate management websites
deemed to be defamatory, and the latter instituted legal proceedings against MTE and Index before
the Hungarian court.
The Hungarian court considered the reactions to be insulting and demeaning, and judged that damage had been caused to the real estate company’s reputation. The Hungarian court emphasised that as MTE and Index had provided their readers the opportunity to post comments on their websites, they had assumed objective liability for their unlawful responses.
Whereupon, MTE and Index, believing their liability for their readers’ reactions to constitute a breach of their right to freedom of expression, set off for Strasbourg.
3. The opinion of the European Court of Human Rights
First, the European Court of Human Rights examined the nature of the comments. In this case, the
Court judged that although the comments were vulgar and offensive, they did not in themselves
constitute clearly unlawful speech. The comments were made in the context of a matter of public
interest, and the manner in which the reactions were expressed is typical of communication on
internet news websites.
However, in the case of Delfi v Estonia, the comments were of a different kind. A few users made incitements to violence, so the statements in themselves could be regarded as hate speech, and could therefore be prohibited under Article 10 §2 ECHR.
In addition, the Court took into account the measures taken by the websites of MTE and Index in order to prevent or remove defamatory comments on their websites. The general terms and conditions expressly stated that the authors of the comments were responsible for their content, and that defamatory responses were forbidden. Moreover, Index had a team of moderators which monitored the reactions posted. Finally, a "notification" procedure was foreseen on the website, which allowed anyone to report a prohibited response, in order for it to be removed.
According to the European Court of Human Rights, the Hungarian court’s assessment that in permitting unfiltered comments MTE and Index could have anticipated that some people would post unlawful reactions, went too far. This kind of duty to monitor is excessive and could undermine the right to share information on the internet. In addition, the Court took into account the fact that the real estate company targeted by the comments had never requested MTE or Index to remove the comments, but had immediately taken legal action. According to the Court, in such situations, the conduct of the petitioning party must also be taken into account.
The European Court of Human Rights ruled that the objective liability of a news website for the
reactions of internet users cannot be automatically accepted. The rights of the news website should
be weighed against the rights of the complainant. It must be assessed whether the measures taken by
a news website are sufficient to protect the rights of any complainant. And the Court concluded
that in most cases a "notification and takedown" procedure is sufficient.
A news website can only be held liable in cases where the comments contain hate speech which constitutes a direct threat to the physical integrity of persons, and it fails to remove these comments straight away even without notification from a victim or third party.
It seems contradictory that the Court, on the one hand, states that advance monitoring is not
required, while at the same time accepting the liability of a news website if it fails to remove
hate speech immediately.
News websites will have to assess this situation for themselves. News websites, or Internet Content Providers in general, are advised to exercise more vigilance in respect of their users’ reactions when publishing articles which they may presume to cause a commotion.
This pronouncement by the European Court of Human Rights has created a positive nuance in the liability of Internet Content Providers for their users’ reactions, and provides a new guideline for national courts judging such disputes.