CONCURRING OPINION OF JUDGE KŪRIS

1. Somewhat similarly to Delfi AS v. Estonia ( GC] (no. 64569/09, ECHR 2015), which was, in the Court ’ s own words, “the first case in which the Court has been called upon to examine a complaint of this type [regarding the liability of Internet providers for the contents of comments]”, the present case is the first in which the principles set forth in Delfi AS , to the balanced reasoning in which I subscribe, have been called upon to be applied and, at the same time, tested.

2. Together with my colleagues, I voted for the finding of a violation of Article 10 of the Convention. The vulgar and offensive comments dealt with in the present case were value judgments of no value whatsoever; however, they did not incite violence, did not stoop to the level of hate speech and, at least in this most important respect, could not a priori be viewed by the applicants as “clearly unlawful”. This is essentially what distinguishes these comments from the hate speech dealt with in Delfi AS . This decisive difference is rightly noted in, inter alia , paragraph 64 of the judgment. Thus, although it results in the opposite conclusion to that found in Delfi AS , the present judgment does not, in my opinion, depart from the Delfi AS principles.

3. Consequently, this judgment should in no way be employed by Internet providers, in particular those who benefit financially from the dissemination of comments, whatever their contents, to shield themselves from their own liability, alternative or complementary to that of those persons who post degrading comments, for failing to take appropriate measures against these envenoming statements. If it is nevertheless used for that purpose, this judgment could become an instrument for (again ! ) whitewashing the Internet business model, aimed at profit at any cost.

If, alas, such a regrettable turn of events should occur, those in the Internet business would not stand alone in their moral responsibility for further contamination of the public sphere. And we cannot pretend that we do not know who – if not personally, still certainly institutionally – would have to share that responsibility. If things develop in that direction, then Judge Boštjan Zupančič ’ s pointed remark in hi s concurring opinion in Delfi AS would become even more pertinent (emphasis added):

“I do not know why the national courts hesitate in adjudicating these kinds of cases and affording strict protection of personality rights and decent compensation to those who have been subject to these kinds of abusive verbal injuries, but I suspect that our own case-law has something to do with it .”

4. T his is the first post- Delfi judgment, but, of course, it will not be the last. It is confined to the individual circumstances of this particular case. There will inevitably be other cases dealing with liability for the contents of Internet messages and the administration thereof. Today, it is too early to draw generalising conclusions. O ne should look forward to these future cases, with the hope that the present judgment, although it may now appear to some as a step back from Delfi AS , will prove to be merely further evidence that the balance to be achieved in cases of this type is a very subtle one.