EHRM, 02-02-2016, nr. 22947/13

In order to determine the standards applicable in the instant case, the Court will consider the nature of the applicants' rights of expression in view of their role in the process of communication and the specific interest protected by the interference, namely — as was implied by the domestic courts — the rights of others.

The Court notes that both the first applicant, as a self-regulatory body of internet service providers, and the second applicant, as a large news portal, provided forum for the exercise of expression rights, enabling the public to impart information and ideas. Thus, the Court shares the Constitutional Court's view according to which the applicants' conduct must be assessed in the light of the principles applicable to the press (see paragraph 25 above).

The Court reiterates in this regard that although not publishers of the comments in the traditional sense, Internet news portals must, in principle, assume duties and responsibilities. Because of the particular nature of the Internet, those duties and responsibilities may differ to some degree from those of a traditional publisher, notably as regards third-party contents (see Delfi AS, cited above, § 113).

In particular, the Court has examined in the case of Delfi AS the duties and responsibilities under Article 10 § 2 of large Internet news portals where they provide, for economic purposes, a platform for user-generated comments and where the users of such platforms engage in clearly unlawful expressions, amounting to hate speech and incitement to violence.

However, the present case is different. Although offensive and vulgar (see paragraphs 12 and 14 above), the incriminated comments did not constitute clearly unlawful speech; and they certainly did not amount to hate speech or incitement to violence. Furthermore, while the second applicant is the owner of a large media outlet which must be regarded as having economic interests, the first applicant is a non-profit self-regulatory association of Internet service providers, with no known such interests.

The domestic courts found that the impugned statements violated the personality rights and reputation of the plaintiff company, a moral person. At this juncture the Court notes that the domestic authorities accepted without any further analysis or justification that the impugned statements were unlawful as being injurious to the reputation of the plaintiff company.

As the Court has previously held, legal persons could not claim to be a victim of a violation of personality rights, whose holders could only be natural persons (see Sdružení Jihočeské Matky v. Czech Republic (dec.), no. 19101/03, 10 July 2006). There is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one's dignity, for the Court, interests of commercial reputation are devoid of that moral dimension (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). Moreover, the Court reiterates that there is an interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki v. Poland, no. 27209/03, § 35, ECHR 2009).

However, in the present case it is not necessary to decide whether the plaintiff company could justifiably rely on its right to reputation, seen from the perspective of Article 8 of the Convention. It suffices to observe that the domestic courts found that the comments in question constituted an infringement of its personality rights. Indeed, it cannot be excluded that the impugned comments were injurious towards the natural person behind the company and that, in this sense, the decisions of the domestic courts intended to protect, in an indirect manner, that person from defamatory statements. The Court will therefore proceed under the assumption that — giving the benefit of the doubt to the domestic courts' stance identifying a valid reputational interest — there was to be a balancing between the applicants' Article 10 rights and the plaintiff's Article 8 rights.

The Court has already had occasion to lay down the relevant principles which must guide its assessment in the area of balancing the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. It identified a number of relevant criteria, out of which the particularly pertinent in the present case, to which the Court will revert below, are: contribution to a debate of public interest, the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication, and the gravity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 93; Von Hannover v. (no. 2), cited above, §§ 108 to 113, ECHR 2012; and Axel Springer AG, cited above, §§ 90–95, 7 February 2012). At this juncture the Court would add that the outcome of such a balancing performed by the domestic courts will be acceptable in so far as those courts applied the appropriate criteria and, moreover, weighed the relative importance of each criterion with due respect paid to the particular circumstances of the case.

In the case of Delfi AS, the Grand Chamber identified the following specific aspects of freedom of expression in terms of protagonists playing an intermediary role on the Internet, as being relevant for the concrete assessment of the interference in question: 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 of the comments as an alternative to the intermediary's liability, and the consequences of the domestic proceedings for the applicant company (see Delfi AS, cited above, §§ 142–43).

These latter criteria were established so as to assess the liability of large Internet news portals for not having removed from their websites, without delay after publication, comments that amounted to hate speech and incitement to violence. However, for the Court, they are also relevant for the assessment of the proportionality of the interference in the present case, free of the pivotal element of hate speech. It is therefore convenient to examine the balancing, if any, performed by the domestic courts and the extent to which the relevant criteria (see Von Hannover (no. 2), cited above, §§ 108 to 113) were applied in that process, with regard to the specific aspects dictated by the applicants' respective positions (see Delfi AS, cited above, §§ 142–43).

Consequently, it has to be ascertained if the domestic authorities struck an appropriate balance between the applicants' right under Article 10, as protagonists in providing Internet platform for, or inviting expressions from, third-parties on the one hand, and the rights of the plaintiff company not to sustain allegations infringing its rights under Article 8, on the other. In particular, in the light of the Kúria's reasoning, the Court must examine whether the domestic courts’ imposition of liability on the applicants for third-party comments was based on relevant and sufficient reasons in the particular circumstances of the case.

The Court itself will proceed to assess the relevant criteria as laid down in its case-law to the extent that the domestic authorities failed to do so.

As regards the context of the comments, the Court notes that the underlying article concerned the business practice of two large real estate websites, which was deemed misleading and injurious to their clients, thus there was a public interest in ensuring an informed public debate over a matter concerning many consumers and Internet users. The conduct in question had already generated numerous complaints to the consumer protection organs and prompted various procedures against the company concerned (see paragraph 16 above). The Court is therefore satisfied that the comments triggered by the article can be regarded as going to a matter of public interest.

Moreover, against this background, the article cannot be considered to be devoid of a factual basis or provoking gratuitously offensive comments.

The Court attaches importance to the fact that the second applicant is the owner of a large news portal, run on a commercial basis and obviously attracting a large number of comments. On the contrary, there is no appearance that the situation of the first applicant, the self-regulatory association of Internet content providers, was in any manner similar; indeed, the latter's publication of contents of predominantly professional nature was unlikely to provoke heated discussions on the Internet. At any rate, the domestic courts appear to have paid no attention to the role, if any, which the applicants respectively played in generating the comments.

As regards the contents of the comments, the domestic courts found that they had overstepped the acceptable limits of freedom of opinion and infringed the right to reputation of the plaintiff company, in that they were unreasonably offensive, injurious and degrading.

For the Court, the issue in the instant case is not defamatory statements of fact but value judgments or opinions, as was admitted by the domestic courts. They were denouncements of a commercial conduct and were partly influenced by the commentators' personal frustration of having been tricked by the company. Indeed, the remarks can be considered as an ill-considered reaction (compare and contrast Palomo Sánchez and Others cited above, § 73). They were posted in the context of a dispute over the business policy of the plaintiff company perceived as being harmful to a number of clients.

Furthermore, the expressions used in the comments were offensive, one of them being outright vulgar. As the Court has previously held, offence may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003); but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression (see Uj, cited above, § 23).

Without losing sight of the effects of defamation on the Internet, especially given the ease, scope and speed of the dissemination of information (see Delfi AS, cited above,§ 147), the Court also considers that regard must be had to the specificities of the style of communication on certain Internet portals. For the Court, the expressions used in the comments, albeit belonging to a low register of style, are common in communication on many Internet portals — a consideration that reduces the impact that can be attributed to those expressions.

As regards the establishment, in the civil proceedings, of the commentators' identities, the Court notes that the domestic authorities did not at all address its feasibility or the lack of it. The Constitutional Court restricted its analysis to stating that the injured party was unlikely to receive any compensation without the liability of the operator of the Internet portal.

At this juncture, the Court notes that there is no appearance that the domestic courts enquired into the conditions of commenting as such or into the system of registration enabling readers to make comments on the applicants' websites.

The national courts were satisfied that it was the applicants that bore a certain level of liability for the comments, since they had ‘disseminated’ defamatory statements (see paragraph 42 above), however without embarking on a proportionality analysis of the liability of the actual authors of the comments and that of the applicants. For the Court, the conduct of the applicants providing platform for third-parties to exercise their freedom of expression by posting comments is a journalistic activity of a particular nature (see Delfi AS, cited above, §§ 112-13). Even accepting the domestic courts' qualification of the applicants' conduct as ‘disseminating’ defamatory statements, 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’ (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001-III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013; and Delfi AS, cited above, § 135).

The Court observes that although the applicants immediately removed the comments in question from their websites upon notification of the initiation of civil proceedings (see paragraphs 15 above), the Kúria found them liable on the basis of the Civil Code, since by enabling readers to make comments on those websites and in connection to the impugned article, they had assumed objective liability for any injurious or unlawful comments made by those readers. As the Budapest Court of Appeal held, the circumstances of removing the comments were not a matter relevant for the assessment of objective liability but one for the assessment of any compensation (see paragraph 20 above).

The Court observes that the applicants took certain general measures to prevent defamatory comments on their portals or to remove them. Both applicants had a disclaimer in their General terms and conditions stipulating that the writers of comments — rather than the applicants — were accountable for the comments. The posting of comments injurious to the rights of third parties were prohibited. Furthermore, according to the Rules of moderation of the second applicant, ‘unlawful comments’ were also prohibited. The second applicant set up a team of moderators performing partial follow-up moderation of comments posted on its portal. In addition, both applicants had a notice-and-take-down system in place, whereby anybody could indicate unlawful comments to the service provider so that they be removed. The moderators and the service providers could remove comments deemed unlawful at their discretion (see paragraphs 7–10 above).

The domestic courts held that, by allowing unfiltered comments, the applicants should have expected that some of those might be in breach of the law. For the Court, this amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet.

The Court also observes that the injured company never requested the applicants to remove the comments but opted to seek justice directly in court — an element that did not attract any attention in the domestic evaluation of the circumstances.

Indeed, the domestic courts imposed objective liability on the applicants for ‘having provided space for injurious and degrading comments’ and did not perform any examination of the conduct of either the applicants or the plaintiff.

As the Court has previously held in the context of compensation for the protraction of civil proceedings, juristic persons may be awarded compensation for non-pecuniary damage, where consideration should be given to the company's reputation (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000-IV). However, the Court reiterates that there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one's dignity, for the Court interests of commercial reputation are primarily of business nature and devoid of the same moral dimension which the reputation of individuals encompasses. In the instant application, the reputational interest at stake is that of a private company; it is thus a commercial one without relevance to moral character (see, mutatis mutandis, Uj, cited above, § 22).

The consequences of the comments must nevertheless be put into perspective. At the time of the publication of the article and the impugned comments, there were already ongoing inquiries into the plaintiff company's business conduct (see paragraph 17 above). Against this background, the Court is not convinced that the comments in question were capable of making any additional and significant impact on the attitude of the consumers concerned. However, the domestic courts do not appear to have evaluated whether the comments reached the requisite level of seriousness and whether they were made in a manner actually causing prejudice to a legal person's right to professional reputation (see paragraph 57 above).

The applicants were obliged to pay the court fees, including the fee paid by the injured party for its legal representation (see paragraph 22 above), but no awards were made for non-pecuniary damage. However, it cannot be excluded that the court decision finding against the applicants in the present case might produce legal basis for a further legal action resulting a damage award. In any event, the Court is of the view that the decisive question when assessing the consequence for the applicants is not the absence of damages payable, but the manner in which Internet portals such as theirs can be held liable for third-party comments. Such liability 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 on the Internet. This effect could be particularly detrimental for a non-commercial website such as the first applicant (compare and contrast Delfi AS, cited above, § 161).

The Constitutional Court held that the operation of Internet portals allowing comments without prior moderation was a forum of the exercise of freedom of expression (see paragraph 25 above). Indeed, the Court stressed on many occasions the essential role which the press plays in a democratic society (see De Haes and Gijsels v. Belgium, cited above, § 37) — a concept which in modern society undoubtedly encompasses the electronic media including the Internet.

However, the Court cannot but observe that the Hungarian courts paid no heed to what was at stake for the applicants as protagonists of the free electronic media. They did not embark on any assessment of how the application of civil-law liability to a news portal operator will affect freedom of expression on the Internet. Indeed, when allocating liability in the case, those courts did not perform any balancing at all between this interest and that of the plaintiff. This fact alone calls into question the adequacy of the protection of the applicants' freedom-of-expression rights on the domestic level.

The Court considers that the rigid stance of the Hungarian courts reflects a notion of liability which effectively precludes the balancing between the competing rights according to the criteria laid down in the Court's case law (see Von Hannover (no. 2), cited above, § 107).

At this juncture, the Court reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland, cited above, § 67).

However, in the case of Delfi AS, the Court found 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. The Court sees no reason to hold that such a system could not have provided a viable avenue to protect the commercial reputation of the plaintiff. It is true that, in cases where third-party user comments take the form of hate speech and direct threats to the physical integrity of individuals, the rights and interests of others and of the society as a whole might entitle Contracting States to impose liability on Internet news portals if they failed to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties (see Delfi AS, cited above, § 159). However, the present case did not involve such utterances.

The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 10 of the Convention.