Information Note on the Court’s case-law 193

February 2016

Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary - 22947/13

Judgment 2.2.2016 [Section IV]

Article 10

Article 10-1

Freedom of expression

Freedom to impart information

Objective liability of Internet portals for third-party comments: violation

Facts – The first applicant was a self-regulatory body of internet content providers and t he second applicant the owner of an Internet news portal. Both applicants allowed users to comment on publications appearing on their portals. Comments could be uploaded following registration and were not edited or moderated by the applicants before publi cation. The applicants’ portals contained disclaimers stating that the comments did not reflect the applicants’ own opinion, and a notice-and-take-down system, which allowed readers to request the deletion of comments that caused concern.

In February 2010 the first applicant published an opinion about two real-estate management websites the full text of which was subsequently also published on the second applicant’s portal. The opinion attracted user comments some of which criticised the real-estate website s in derogatory terms. As a result, the company operating the websites brought a civil action against the applicants alleging damage to its reputation. The applicants immediately removed the offending user comments. They were nevertheless found by the dome stic courts to bear objective liability for their publication, and ordered to pay procedural fees.

Law – Article 10: The Court had to assess whether an appropriate balance between the applicants’ right to freedom of expression under Article 10 and the plai ntiff company’s right to reputation under Article 8 had been struck. This assessment had to be carried out following the criteria established by the Court in the leading case of Delfi AS v. Estonia ([GC], 64569/09, 16 June 2015, Information Note 186 ).

(a) Context in which the comments were posted – The article under which the comments were posted concerned the allegedly unethical and misleading business practice of two real estate websites which had already prompted various proceedings against the company operating them before consumer-protection bodies. The comments triggered by the article could therefore be regarded as going to a matter of public interest. The article was not devoid of a factual b asis or liable to provoke gratuitously offensive comments. For their part, the domestic courts appeared to have paid no attention to the role, if any, played by the applicants in generating the comments.

(b) Content of the comments – The domestic courts had found the comments unreasonably offensive, injurious and degrading. However, the Court observed that the use of vulgar phrases in itself was not decisive and that it was necessary to have regard to the specificities of the style of communication on certain Internet portals. The expressions used in the comments, albeit belonging to a low register of style, were common in communication on many Internet portals, so the impact that could be attributed to them was thus reduced.

(c) Li ability of the authors of the comments – The domestic courts had found the applicants liable for “disseminating” defamatory statements without embarking on a proportionality analysis to ascertain the respective liability of the authors of the comments and of the applicants. Furthermore, even accepting the domestic courts’ analysis, holding the applicants liable for third-party comments was difficult to reconcile with the Court’s case-law requiring “particularly strong reasons” before envisaging the punishme nt of a journalist for assisting in the dissemination of statements made by a third party.

(d) Measures taken by the applicants and conduct of the injured party – The applicants had removed the comments in question as soon as they were notified of the ini tiation of civil proceedings. They also had general measures in place to prevent or remove defamatory comments on their portals, including a disclaimer, a team of moderators, and a notice-and-take-down system. Despite this, the domestic courts held them li able for allowing unfiltered comments to be posted. For the Court, that finding amounted to requiring excessive and impracticable forethought capable of undermining the freedom to impart information on the Internet. The Court further noted that the domesti c courts had not taken into account the fact that the plaintiff company at no stage requested the applicants to remove the comments but went directly to court.

(e) Consequences for the injured party and the applicants – The Court noted that what was at s take in the instant case was the commercial reputation of a private company rather than the reputation of a natural person, which enjoyed greater protection. Moreover, the comments were hardly capable of making any additional and significant impact on the attitude of consumers as inquiries into the plaintiff company’s business conduct had already started when the article was published. In any event, the domestic courts did not seem to have evaluated whether the comments reached the requisite level of seriou sness and whether they were made in a manner that actually caused prejudice. As for the impact of the judgments on the applicants, although they had not been required to pay compensation for non-pecuniary damage, it could not be excluded that the finding a gainst them might form the basis for further legal action resulting in such an award. In any event, the decisive issue was that objective liability for third-party comments could have foreseeable negative consequences for an Internet portal, for example by requiring it to close the commenting space altogether. This in turn could have a chilling effect on freedom of expression on the Internet, which could be particularly detrimental for a non-commercial website such as that operated by the first applicant.

In conclusion and given the absence of hate speech or direct threats to physical integrity in the user comments, the Court found that there was no reason to hold that, if accompanied by effective procedures allowing for a rapid response, the notice-and-tak e-down-system could not have provided a viable avenue to protect the plaintiff company’s commercial reputation in the present case.

Conclusion : violation (unanimously).

Article 41: no claim made in respect of damage.

(See also the factsheets on the Right to the protection of one’s image and on Hate speech )

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

Click here for the Case-Law Information Notes