Free expression vs reputational rights: liability of online intermediaries

February 2nd, 2016

If you take the view that a reader’s comments about you posted on a news website infringe your privacy or data protection rights, should you be able to sue the website (as opposed to the author of the comments)? This question is enormously important. It reflects our evolving legal, social and ethical approach to resolving tensions between freedom of expression and privacy. It goes to the heart of both online journalism and internet business models. A new judgment given today makes an important contribution to this debate – and will be seen as heartening for advocates of free expression in an online world.

By way of background: last summer, the Grand Chamber of the European Court of Human Rights (ECtHR) considered this question in the Estonian case of Delfi AS v Estonia (Case no. 64569/09) (see Anya’s post here). In that case, the news portal had been held liable for user comments which amounted to hate speech and incitement to violence. The ECtHR upheld that liability as a justified interference with Delfi’s rights to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).

The Fourth Chamber of the ECtHR has today given judgment in a (superficially) similar case: Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary (Case no. 22947/13).

The application was brought by MTE (the self-regulatory body of Hungarian Internet content providers) and Index (an owner of a major Hungarian internet news portal). The former is a not-for-profit body, the latter a sizeable profit-making company. That factual point is relevant.

They both posted opinion pieces about the allegedly unscrupulous practices of two estate management websites owned by the same company, which was then the subject of a well-publicised regulatory investigation. The news sites allowed users to post comments, subject to certain disclaimers about liabilities, warnings about offensive content, moderation and take-down procedures.

Here is the pivotal (rude, if colourful) user comment about the estate management companies:

“People like this should go and shit a hedgehog and spend all their money on their mothers’ tombs until they drop dead.”

The company complained that the opinion piece was false and offensive, and that the subsequent user comments had infringed its right to good reputation. It did not approach the applicant websites, but instead filed proceedings. The websites removed the offending material when they got wind that they were being sued.

The Hungarian Courts consistently upheld the claims. The news websites were found to be liable for the user comments, in the same way that a newspaper is liable for publishing readers’ letters. They had to pay legal costs, but not damages for non-pecuniary losses by the complainant company. The news websites complained to the ECtHR that their rights under Article 10 ECHR had been infringed. There was no dispute that there had been an interference with Article 10 rights. The question was whether this interference was justified.

The first component of that question was whether the interference was “prescribed by law”. Answer: yes, it was. It was not for the ECtHR to express a view on the appropriateness of Hungarian law, but only to assess conformity with the ECHR. Here:

“… the [Hungarian] Civil Code made it foreseeable for a media publisher running a large Internet news portal for an economic purpose and for a self-regulatory body of Internet content providers, that they could, in principle, be held liable under domestic law for unlawful comments of third-parties. Thus, the Court considers that the applicants was in a position to assess the risks related to their activities and that they must have been able to foresee, to a reasonable degree, the consequences which these could entail”.

That, however, was far from the end of the matter. The crucial issue was whether the interference was necessary in a democratic society for the protection of the rights and interests of others.

In this case, there was an interesting question as to whether the complainant company had suffered an interference with its rights to private life under Article 8 ECHR. Had it been an individual, the answer would have been straightforward, but the position is murkier when it comes to non-natural persons. The ECtHR was, however, prepared to proceed on the basis that Article 8 ECHR was engaged. It therefore had to undertake the increasingly common, but nonetheless difficult and fact-sensitive balancing of Article 10 and Article 8.

The ECtHR’s approach was to ask itself whether the Hungarian Courts’ reasoning reflected a sound engagement with the principles governing online intermediaries’ liability, as articulated by the Grand Chamber in Delfi: 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.

Notably, while the ECtHR in MTE/Index faithfully applied the Delfi principles, it carefully distinguished Delfi on the facts. See its para 64:

“Although offensive and vulgar… 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.”

In this case, the ECtHR was wholly unimpressed with the reasoning and analysis (or lack thereof) of the Hungarian Courts (see for example para 88). Unlike in Delfi, the applicant news portals were vindicated: by making them liable for these user comments in these factual circumstances (not my emphasis), the Hungarian Courts had unjustifiably interfered with these journalistic enterprises’ rights to freedom of expression.

Here are some of the reasons for the outcome in MTE/Index.

  • The domestic courts had not grappled with whether the comments complained of were sufficiently serious. See para 77: “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.”
  • No adequate consideration had been given to the measures these news websites had in place to safeguard against unacceptable comments, or to the fact that the complainant company had not even bothered to approach them asking for the comments to be removed.
  • The complainant was a company, rather than an individual. This has a bearing on the extent and nature of the Article 8 interference. See para 84: “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.”
  • Anyway, what difference did the hedgehog comment actually make? The complainant company was already suffering reputational damage due to other published material and the well-publicised regulatory investigation into its practices. In those circumstances, the Hungarian Courts needed to assess what incremental damage the impugned comments were likely to cause.
  • The question of alternative remedy had not been explored. In other words, why not go after the authors of the comments, rather than the news intermediaries?
  • This raised the broader question of whether it is fair to impose liability on the journalistic enterprise for user comments. See para 79: “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’”.

As the distinguishing of Delfi illustrates, all such judgments and balancing exercises are fact-specific. Nonetheless, publishers, journalists and news websites will take heart from the outcome and the analysis summarised above. They will be further encouraged by this broader concluding observation at para 91: “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”.

Is the MTE/Index judgment a major step in free expression’s fightback against privacy’s recent pre-eminence?

Robin Hopkins @hopkinsrobin

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