Communicated on 5 May 2017

FIFTH SECTION

Application no. 39378/15 STANDARD VERLAGSGESELLSCHAFT MBH against Austria lodged on 7 August 2015

STATEMENT OF FACTS

The applicant company, the Standard Verlagsgesellschaft mbH is a limited liability company registered in Vienna. It is represented before the Court by Ms M. Windhager , a lawyer practising in Vienna.

A. The circumstances of the case

The facts of the case, as submitted by the applicant company, may be summarised as follows.

1. Background of the case

The applicant company, a media company, owns a daily newspaper and runs an online news portal, available at http://derstandard.at (hereinafter, “the portal”). The portal includes discussion forums and allows registered users to post comments relating to articles published by the applicant company. In the course of the registration process, users are required to submit their name, surname and e ‑ mail address to the applicant company; moreover, they may, optionally, submit their postal address. Once the registration process is completed, users need to login with a username and password in order to post comments.

The applicant company has established rules for participating in the discussions, which users are advised of (“community guidelines”). Users are reminded of their responsibility for their comments and that they can be held liable for them; moreover, it is indicated that the applicant company will only disclose user data if required so by law. Inter alia , personal attacks against other persons by insult, threat or abuse, as well as defamatory statements or statements affecting business, are not accepted. The applicant company reserves the right to delete postings that do not comply with the community guidelines.

The applicant company has installed an automated buzzword screening system. All user comments are screened by this system before publication. In case of a hit, the publication of the comment becomes subject to a manual ex ante -review. The automated screening system also takes other factors into account, in particular the number of previous hits relating to the same user, or whether the comment was made by someone newly registered. Furthermore, in discussions relating to particularly sensitive issues, all postings may have to undergo a manual review before publication. If deemed necessary, discussion forums will be closed.

After publication, user comments are subject to editorial review by the applicant company on a regular basis. Moreover, the applicant company has implemented a notice-and-take-down system: other users can trigger a manual editorial review of user comments by means of a “report”-button.

According to the applicant company ’ s submissions, its moderators review up to 6,000 user comments per day; reported user comments are duly reviewed, and requests for deletion are granted liberally; and user data is disclosed, at a request and in accordance with the law, to third parties if it is sufficiently clear that a comment violated the rights of a person.

2. Articles and comments published on the portal

( a ) Article and comments concerning K.S. and the FPK

On 19 March 2012 an article under the heading “[S.] Brothers take action against forum users” ( “ Gebrüder [S.] gehen gegen Foren -User vor ” ) was published on the portal. The article related, inter alia , to K.S., who was at that time the head of Die Freiheitlichen in Kärnten (FPK), a regional political party. The article attracted more than 1,600 user comments.

On 22 March 2012 user “Tango Korrupti2013” posted the following comment relating to that article:

“Corrupt politician-assholes forget, we don ’ t election day is payday !!!!!”

(“Korrupte Polit-Arschlöcher vergessen, wir nicht Wahltag ist Zahltag!!!!!”)

On 23 March 2012 user “ rrrn ” posted the following comment:

“Was to be expected that FPOe /K, BZOe ...-opponents would get carried away. Would not have happened if those parties had been banned for their continuous Nazi-revival.”

(“War zu erwarten, dass FPOe /K, BZOe ...-Gegner ueber die Straenge schlagen. Waere nicht passiert, wenn diese Parteien verboten worden waeren wegen ihrer dauernden Nazi-wiederbelebung.“)

K.S. and the FPK requested the applicant company to disclose the name, address and e-mail address (hereinafter; “user data”) of these users in order to institute civil and criminal proceedings against them. The applicant company subsequently deleted the comments but refused to disclose the user data.

(b) Interview and comments concerning H.K.

On 5 May 2013 an interview with H.K. under the heading “What you call uproar, I call advertising effectiveness” ( “Was Sie Aufruhr nennen , nenne ich Werbewirksamkeit ” ) was published on the portal. H.K. was at that time a member of the national parliament and the general secretary of a political party.

Following the publication of this interview, user “ try_error ” posted the following comment:

“ if we did not perpetually misunderstand freedom of expression and if undermining our constitution and destabilising our form of government were consequently made punishable, or if at least the mafia provision had for once been applied to the right-extremist scene in Austria, then [H.K.] would be one of the greatest criminals in the 2nd republic...”

(“würden wir nicht ewig meinungsfreiheit falsch verstehen und wäre das sägen an der verfassung und das destabilisieren unserer staatsform konsequent unter strafe gestellt, oder wäre wenigstens der mafiaparagraf einmal angewendet worden auf die rechtsextreme szene in österreich , dann wäre [H.K.] einer der größten verbrecher der 2ten republik ...”)

H.K. requested the applicant company to disclose the name, address and e-mail address of this user in order to institute civil and criminal proceedings against him. The applicant company subsequently deleted the comment but refused to disclose the user data.

3. Proceedings against the applicant company

(a) The proceedings of K.S. and the FPK against the applicant company

On 11 June 2012 K.S. and the FPK brought a civil lawsuit against the applicant company in order to obtain from it, pursuant to section 18 (4) of the E ‑ Commerce Act ( E-Commerce Gesetz ), user data relating to the users “ rrrn ” and “Tango Korrupti2013”, claiming that their postings qualified as defamations ( Ehrenbeleidigungen ) within the meaning of Article 1330 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) and that the user data was required in order to file civil claims against the users. The applicant company maintained that it was not obliged to disclose the user data because the comments at issue were not defamatory but permissible value statements. Moreover, it argued that it was, pursuant to section 31 (1) of the Media Act ( Mediengesetz ) concerning the protection of editorial confidentiality ( Redaktionsgeheimnis ), entitled to refuse the disclosure of its sources.

On 10 September 2013 the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen ) dismissed the claim. It considered that the requirements for disclosure under section 18 (4) of the E ‑ Commerce Act had not been met because the plaintiffs had not shown illegal acts. As regards the circumstances of the publication of the comments, the court held that it could not be established whether the user comments at issue had undergone a manual review before publication. The plaintiffs appealed.

On 26 May 2014 the Vienna Court of Appeals ( Oberlandesgericht ) granted the plaintiffs ’ appeal and ordered the applicant company to disclose the user data relating to “ rrrn ” and “Tango Korrupti2013”. It held that both comments at issue could qualify as defamatory within the meaning of Article 1330 of the Civil Code, and that the plaintiffs were thus entitled to disclosure of the user data pursuant to section 18 (4) of the E ‑ Commerce Act. It held that the applicant company could not rely on the protection of editorial confidentiality because there was no connection to its journalistic activities, and that section 31 (1) of the Media Act required at least some action/review/notification of a media employee.

On 19 February 2015 the Supreme Court ( Oberster Gerichtshof ) confirmed the Court of Appeal ’ s judgment. It held that information received by the persons set out in section 31 (1) of the Media Act was protected by editorial confidentiality under this provision only if it was disclosed to them in view of their journalistic activities. The Supreme Court confirmed that at least some action/review/notification of a media employee needed to be intended in order to trigger the protection of editorial confidentiality. It considered that a mere software screening for keywords was not sufficient to establish a connection with the journalistic activity; the editorial ex post -reviews would not lead to a different result because they only related to comments that had already been published. As regards the obligation to disclose user data pursuant to section 18 (4) of the E ‑ Commerce Act, the Supreme Court held that it was sufficient that a person who is not a lawyer ( juristischer Laie ) could, upon notice, perceive that a conviction pursuant to Article 1330 of the Civil Code could not be ruled out. If that was the case, the person concerned had an overriding interest in the disclosure of the user data.

The Supreme Court ’ s decision was served on the applicant ’ s counsel on 4 May 2015.

(b) The proceedings of H.K. against the applicant company

On 26 July 2013 H.K. brought a civil lawsuit against the applicant company in order to obtain from it data relating to the user “ try_error ”, essentially relying on the same arguments as those brought forward by K.S. and the FPK. The applicant company maintained substantially the same arguments as in the other set of proceedings.

On 25 November 2013 the Vienna Inner City District Court ( Bezirksgericht ) dismissed the claim. The applicant appealed.

On 29 April 2014 the Vienna Regional Civil Court granted the appeal and ordered the applicant company to disclose the user data relating to “ try_error ”.

On 15 December 2014 the Supreme Court confirmed that judgment for the same reasons a s set out in its judgment of 19 February 2015 relating to the civil suit by K.S. and the FPK.

The Supreme Court ’ s decision was served on the applicant ’ s counsel on 13 February 2015.

B. Relevant domestic law

1. Article 1330 of the Civil Code

Article 1330 of the Civil Code provides as follows:

“1. Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation.

2. The same shall apply if anyone disseminates allegations which jeopardise a person ’ s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and publication thereof ...”

2. Section 31 (1) and (2) of the Media Act

Section 31 (1) and (2) of the Media Act, relating to the protection of editorial confidentiality, provides as follows:

“(1) Media owners, editors, copy editors and employees of a media company or media service have the right to refuse, as witnesses in criminal proceedings or other proceedings before a court or an administrative authority, answering questions relating to the identity of an author, sender or source of articles and documentation, or any information they obtained in connection with their profession.

(2) The right as stated in paragraph (1) must not be by-passed, in particular by ordering the person enjoying this right to disclose documents, printed matter, image, sound or data carriers, illustrations or other representations of such contents, or by confiscating them.”

3. Section 18 (4) of the E-Commerce Act

Section 18 (4) of the E-Commerce Act provides as follows:

“(4) The service providers mentioned in section 16 must transmit the name and address of a user of their service, with whom they have concluded agreements concerning the storage of information, to third parties at their request if they make credible an overriding legal interest in determining the identity of a user and a particular illegal situation, and furthermore substantiate that the knowledge of such information constitutes an material prerequisite for legal prosecution.”

COMPLAINT

The applicant company complains under Article 10 of the Convention that the orders to disclose user data disproportionately interfered with its right to freedom of expression. In particular, the applicant company complains about a violation of its right to freedom of the press, claiming that the user data in question were protected by editorial confidentiality. It further complains about the domestic courts ’ qualification of the user comments as possibly defamatory under Article 1330 of the Civil Code, claiming that they were permissible value statements.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant company ’ s freedom of expression, in particular its right to receive and impart information and ideas, within the meaning of Article 10 § 1 of the Convention?

2. If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

3. In particular, to what extent are the duties and responsibilities inherent in the applicant company ’ s activities as the provider of an online news portal relevant to its claim and the State ’ s margin of appreciation in this field?

(Reference is made to the Court ’ s judgements and decision in the cases of Delfi AS v. Estonia [GC], no. 64569/09, ECHR 2015, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13 , 2 February 2016, and Pihl v. Sweden ( dec. ), no. 74742/14, 9 March 2017)

4. In particular, to what extent are the duties and responsibilities inherent in the applicant company ’ s journalistic activities, in particular its editorial activities relating to user comments before and after their publication on the applicant company ’ s online news portal, relevant to its claim and the State ’ s margin of appreciation in this field?

(Reference is made to the Court ’ s judgement in the case of Goodwin v. the United Kingdom, 27 March 1996, Reports of Judgments and Decisions 1996 ‑ II)