THIRD SECTION

DECISION

Application no. 76022/14 Sergey Nikolayevich NEMCHINOV against Russia

The European Court of Human Rights (Third Section), sitting on 1 March 2022 as a Committee composed of:

Darian Pavli, President, Peeter Roosma, Mikhail Lobov, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 76022/14) against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 November 2014 by a Russian national, Mr Sergey Nikolayevich Nemchinov, who was born in 1974 and lives in Ploskoye, Kursk Region (“the applicant”);

the decision to give notice of the complaint concerning the right to freedom of expression to the Russian Government (“the Government”), initially represented by Mr G. Matyushkin and Mr M. Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr M. Vinogradov;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The case raises the issue of liability of a website owner for activities of third persons on his website and alleged violation of Article 10. Mr Nemchinov owned and ran a rating service, www.black-agent.ru, which let online visitors post opinions about estate agents and landlords. It was stated on the website that any complaints about the posted information could be submitted via a feedback form. It was also possible to post replies to comments.

2. Sometime in 2011-2012 an unidentified person published a post about Ms K., a real estate agent working in a large and well-known agency, providing her full name and telephone numbers and stating that she had been involved in fraud, had asked for an advance payment on a flat and then had failed to close the sale and had refused to pay the advance payment back.

3. Ms K. asked the applicant several times to delete the comment via the website feedback form, but he ignored her requests. She was dismissed from her position in the real estate agency, allegedly because of the above statements.

4 . In March 2012 and January 2013, she unsuccessfully tried to initiate criminal proceedings against the applicant. The applicant was interrogated by the police officers, but the relevant proceedings were discontinued.

5. In April 2013 she sued the applicant for defamation.

6 . The applicant took down the information from his website.

7 . The domestic courts held that under Federal Law of 27 July 2006 no. 149-FZ “On information, information technology and protection of information” a person providing hosting services and access to information did not bear civil liability for the dissemination of information if he or she could not have known that its dissemination had been unlawful. They analysed whether the information posted on the website contained value judgments or facts and concluded that it was defamatory. They established that the applicant had been aware of defamatory information on his website but had failed to take it down, despite Ms K.’s requests and even after her attempts to initiate criminal proceedings. They awarded Ms K. 20,200 Russian roubles (approximately 450 euros at the time) in non-pecuniary damage.

THE COURT’S ASSESSMENT

8. The applicant complained that holding him liable for the comments posted by an unknown person on his website infringed his freedom of expression as provided for in Article 10 of the Convention.

9. The general principles concerning freedom of expression and protection of reputation of others in the Internet have been summarised in Delfi AS v. Estonia [GC], no. 64569/09, §§ 133, 136-161, ECHR 2015 and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary , no. 22947/13, § 54-59, 2 February 2016. The Court accepted that in certain circumstances the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay (see Delfi AS , cited above, § 159). It 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 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 (see Delfi AS , cited above, §§ 142-43, and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt , cited above, §§ 69-70).

10. In the present case, it was not in dispute between the parties that the applicant’s freedom of expression had been interfered with by the domestic courts’ decisions. There is no reason to hold otherwise. The interference was “prescribed by law”. It pursued a legitimate aim – namely, the protection of the rights of others – within the meaning of Article 10 § 2 of the Convention. The Court must now examine whether the interference was “necessary in a democratic society”.

11. As regards the context in which the comments were posted, the applicant’s website had been created for the purpose of denouncing unlawful and unethical behaviour of real estate agents. Therefore, it could be argued that the website served a public interest. However, as to the contents of the comments, they appeared to be of a purely defamatory nature: an anonymous person published Ms K.’s personal information and allegations of fraud committed by her, without any evidence such as documents, other sources or court proceedings.

12. The website provided take-down tools: a feedback form and comments to the reviews. Therefore, it cannot be said that the applicant’s role in managing the content was passive. 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 (see Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt , cited above, § 91). However, the applicant had failed, in his role as the owner of the website, to act upon the contested statements as soon as he had become aware of Ms. K’s claims about their allegedly defamatory nature (see, mutatis mutandis and by contrast, Pihl v. Sweden (dec.), no. 74742/14, § 30, 7 February 2017). By choosing not to take down the information about Ms K. in such circumstances, it can be considered that the applicant assumed liability for the publication of the statements and any negative consequences of his choice, such as future defamation proceedings.

13. As regards Ms K.’s conduct, she asked the applicant several times to remove the information and tried to initiate criminal proceedings against him. However, the applicant removed the comments only when he was notified of the civil proceedings instituted against him. The domestic courts performed an examination of the conduct of the applicant and the plaintiff (see, by contrast, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt , cited above, § 83).

14. Finally, what was at stake in the instant case was the reputation of a natural person, which enjoyed greater protection in this respect than legal persons (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 110, ECHR 2012). The comments could have had a negative impact on the attitude of the clients and the employer towards Ms K. As to the impact of the court decisions on the applicant, he was required to pay a compensation for non ‑ pecuniary damage which cannot be considered disproportionate to the breach established by the domestic courts. Although protected by Article 10, the safeguards relating to the information published on the applicant’s website cannot reach the same level as that afforded to political expression and debate (see, mutatis mutandis , Neij and Sunde Kolmisoppi v. Sweden (dec.), no. 40397/12, 19 February 2013).

15. Based on the assessment of the above aspects, the Court finds that the domestic courts’ imposition of liability on the applicant was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant’s right to freedom of expression.

16. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 March 2022.

Olga Chernishova Darian Pavli Deputy Registrar President