The European Court of Human Rights (“ECHR”) might not at first sight seem like a likely forum to address issues concerning liability for online user-generated content but in just over half a year it has given two noteworthy rulings in this area in the context of the freedom of expression with clear implications for any business running a website. The facts in these cases are also instructive as they led to different legal outcomes.
The Delfi AS (“Delfi”) case
In the Delfi -v- Estonia judgment of 16 June 2015 (which can be found here) the ECHR (sitting at the highest level in its Grand Chamber capacity) ruled that the Estonian courts had not infringed the right to freedom of expression under Article 10 of the European Convention on Human Rights of the company Delfi when the Estonian courts held Delfi liable for racist and threatening user-generated content, even though the comments in question had been taken down by Delfi once they had been given notice.
In 2006, Delfi, a large Estonian commercial news portal, posted an article on its website entitled “SLK Destroyed Planned Ice Road”. Ice roads are public roads over the frozen sea between the mainland and islands in winter, and, “SLK” is the abbreviation for the name of a company that provides a public mainland-islands ferry service. Delfi’s website allowed readers the possibility of posting comments in response to news articles. Delfi also operated a “notice-and-take-down” policy where any reader could mark a comment as insulting or mocking or inciting racial hatred and the comment would then be removed expeditiously. The article in question attracted several offensive and threatening comments aimed at an individual referred to as “L”, the majority shareholder of SLK. The comments were not picked up by the website’s filtering system, it wasn’t until six weeks later when these comments were removed by the website’s operators.
“L” then requested compensation from Delfi but was refused it following which he went through the Estonian courts system seeking damages relying on EU E-Commerce Directive 2000/31 (as implemented under Estonian law). The Estonian courts ruled that Delfi was a publisher and not a “hosting intermediary” (for the purposes of the E-Commerce Directive 2000/31), and the princely sum of Euro 320 was awarded against Delfi for the unlawful comments.
Delfi then went to the ECHR claiming that the approach of the Estonian courts was inconsistent with the right to freedom of expression as set out under Article 10 of the European Convention on Human Rights. Further, Delfi argued that its news portal qualified for the “hosting defence” under Article 14 of E-Commerce Directive 2000/31 which excludes liability where the host has no actual knowledge of the unlawful content and acts expeditiously to remove it once notified.
The ECHR ruled against Delfi finding no Article 10 violation by Estonia. The ECHR stated that because Delfi exercised a substantive degree of control over the comments published, and, enjoyed click-based advertising, integrated in the article (i.e. Delfi had a financial interest in encouraging users to comment), Delfi went beyond being a passive and purely technical service provider. The ECHR stressed that Delfi should have known that the article in question would attract the type of comments that it did which the ECHR described as being “manifestly unlawful” and “amounting to hate speech”. Perhaps most crucially, the ECHR ruled that the measures implemented by Delfi to prevent publication of the unlawful content were inadequate and that Delfi’s “notice-and-take-down” system was not sufficiently robust to protect it from liability. Finally, somewhat controversially, the ECHR also considered that due to Delfi’s substantive resources, and the fact that those making the comments were anonymous, it was proportionate for “L” to seek compensation from Delfi rather than those making the offensive comments.
The Hungarian cases
In the Magyar Tartalomszolgáltatók Egyesülete (“MTE”) and Index.hu Zrt (“Index”) -v- Hungary judgment of 2 February 2016 (which can be found here) the ECHR ruled that the Hungarian courts had infringed the right to freedom of expression under Article 10 of the European Convention on Human Rights of two internet portals when the Hungarian courts found them liable for user-generated content.
In 2010 MTE, a self-regulatory body of Hungarian internet content providers, published an opinion entitled “Another unethical commercial conduct on the net” about two real estate management websites owned by the same company, which concluded that the conduct of the service provider was unethical and misleading. The opinion attracted various comments from people acting pseudonymously. Shortly thereafter Index, the owner of one of the major Internet news portals in Hungary, wrote about the opinion under the title “Content providers condemn [one of the incriminated property websites]” publishing the full text of the opinion and which attracted comments from people acting pseudonymously.
Generally-speaking, both MTE and Index allowed users to comment on publications appearing on their portals. Comments could be uploaded following registration and were not previously edited or moderated by MTE or Index. MTE and Index also advised their readers, in the form of disclaimers, that the comments did not reflect the portals’ own opinion and that the authors of the comments were responsible for their contents. Both MTE and Index had in place a “notice-and-take-down” system whereby any reader could notify the service provider of any comment of concern and request its deletion. Further, in the case of Index, comments were partially moderated and, where necessary, removed.
The company operating the real estate management websites brought civil actions before a court against MTE and Index claiming that the opinion and subsequent comments had infringed their right to good reputation. In their defence MTE and Index argued that as “intermediary” publishers they were not liable for the user comments. The court found that the company owning the websites’ right to good reputation had been infringed and also rejected the “intermediary” defence. The court ruled that the comments were offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression and constituted edited content that fell into the same category as readers’ letters and that MTE and Index were liable for their publication even though they had removed the content later on. But, as regards the opinion, the court ruled that it had contributed to an on-going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism.
MTE and Index then appealed. The court of appeal upheld the lower court’s decision but amended the reasoning stating that, as opposed to readers’ letters whose publication was solely dependent on editorial decisions, the unedited comments reflected the opinions of the commenters. However, the owner of the websites concerned was liable for them because E-Commerce Directive 2000/31 (as implemented under Hungarian law) did not apply as it related to electronic services of a commercial nature which, according to the court, was not the case in this matter and so the “hosting services” and “intermediaries” defence could not even be considered. Instead the provisions of the Hungarian Civil Code concerning “personality rights” applied and because the comments were ruled as being injurious to the company operating the real estate websites, MTE and Index were “objectively” liable in this respect, irrespective of the later removal of the comments. The matter went before the Hungarian Supreme Court which upheld the previous judgments, following which the matter went to the Hungarian Constitutional Court which analysed but dismissed the matter.
MTE and Index then went to the ECHR claiming that the rulings of the Hungarian courts which had established “objective” liability on the part of the Internet websites for the contents of users’ comments amounted to an infringement of the right to freedom of expression as set out under Article 10 of the European Convention on Human Rights.
The ECHR ruled against Hungary finding that there had been an Article 10 violation and that the Hungarian courts had been wrong in holding MTE and Index liable for the user-generated content in question. Essentially, the ECHR decided that when the Hungarian courts determined the issue of liability they had not carried out a proper balancing exercise between the Article 10 freedom of expression right of MTE and Index, and, the real estates’ websites’ right to (commercial) reputation protected by Article 8 of the European Convention on Human Rights as part of the right to respect for private life.
In directly comparing this case to the Delfi case, the ECHR ruled that although the comments were offensive and vulgar they “did not constitute clearly unlawful speech; and they certainly did not amount to hate speech or incitement to violence”. Further, the ECHR stated that, while [Index] is the owner of a large media outlet which must be regarded as having economic interests, [MTE] is a “non-profit self-regulatory association” of Internet service providers with no known such interests”. The ECHR also applied the freedom of expression criteria used in the Delfi case and found a number of failings on the part of the Hungarian courts including the fact that: they had failed to assess how feasible it would have been to establish the identity of those posting the comments; they had in effect simply determined that MTE and Index were liable simply for having provided space for the comments in question and had erred in assessing what action MTE and Index should have taken in “notice-and-take-down” terms; they had failed to take into consideration the conduct of the company operating the real estate management websites and the fact that the latter had not requested taking down the comments before initiating proceedings; and, last but not least, they had not properly considered the way in which internet portals can be liable for third-party comments and the chilling effect this might have on internet freedom of expression, especially for non-commercial websites.
The ECHR also stated that the business practices of the company operating the real estate management websites were already under investigation and so the ECHR was not convinced that the comments in question made any real impact on the company’s reputation.
What lessons can be learnt from these cases? First, the issues in these cases will turn on their facts and are best approached on a case-by-case basis. Second, hosts of user-generated content, in particular used as a key commercial activity, should consider revising their user-generated content policies and ensure that they carry out very pro-active monitoring and operate a system that removes clearly unlawful comments without delay.
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You can find out more about some of the terms used in this article in our glossary here.
For more information please contact André Bywater or Jonathan Armstrong who are lawyers with Cordery in London where their focus is on compliance issues.
André Bywater, Cordery, Lexis House, 30 Farringdon Street, London, EC4A 4HH
Office: +44 (0)207 075 1785
Jonathan Armstrong, Cordery, Lexis House, 30 Farringdon Street, London, EC4A 4HH
Office: +44 (0)207 075 1784