Information Note on the Court’s case-law 215

February 2018

Oktar v. Turkey (dec.) - 59040/08

Decision 30.1.2018 [Section II]

Article 8

Article 8-1

Respect for private life

Dismissal of claim for damages and for final order blocking publication of Internet pages containing defamatory material: inadmissible

Facts – In 2005 the applicant requested an interim order blocking certain pages of a community website on th e grounds that they contained remarks that infringed his personality rights. The first-instance judge granted the request. The applicant subsequently applied to the Court of First Instance to have the pages in question blocked permanently, and submitted a claim for damages. The court dismissed his claims in 2006 on the grounds that the applicant had not succeeded in proving his allegations regarding the publication of the offending material by the website. In 2008 the Court of Cassation upheld that judgment .

Law – Article 8: The applicant had had the benefit of adversarial proceedings, he had been able to adduce evidence in support of his claims and present his case freely, and his arguments had been duly examined. The domestic courts had given adequate reas ons for their decisions and their assessment of the circumstances submitted to them for examination could not be considered arbitrary, manifestly unreasonable or apt to undermine the fairness of the proceedings.

That being said, assuming that at the time o f the request for an interim order insulting or defamatory remarks concerning the applicant had existed on the website, they had probably been removed by the moderators of the site before the applicant had instituted the main proceedings.

The Court observe d in that regard that, in the case of Delfi AS v. Estonia [GC] (64569/09, 16 June 2015, Information Note 186 ), in which the comments posted by third parties on a news portal had taken the form of ha te speech and direct threats to a person’s physical integrity, it had found that, in order to protect the rights and interests of individuals and of society as a whole, Contracting States could be entitled to impose liability on Internet news portals, with out contravening Article 10 of the Convention, if the portals in question failed to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. However, in many other cases a notice-an d-take-down system, accompanied by effective procedures allowing for a rapid response, could serve as an appropriate tool for balancing the rights and interests of all those involved.

In the instant case the procedure put in place by the website in questio n, whereby the moderators withdrew undesirable comments without even awaiting notice, could not be regarded as an inappropriate tool for the protection of individuals’ reputations. Hence, assuming that some persons had posted possibly defamatory remarks co ncerning the applicant on the website and that these had been removed by the site’s moderators after the first-instance judge’s decision imposing an interim order had been served, or even before, the Court could not find that there had been interference wi th the applicant’s right to respect for his private life. Consequently, in rejecting the applicant’s requests for the relevant pages of the website to be blocked permanently, and his claim for damages, the domestic courts could not be said to have failed t o protect his right to respect for his private life.

Conclusion : inadmissible (manifestly ill-founded).

(See also the Factsheet on Hate speech )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes