PARTLY DISSENTING OPINION OF JUDGE EICKE

1. To my regret, I find myself unable to agree with my colleagues that the Applicant Newspaper’s Article 10 rights were engaged in this case and I therefore voted against the admissibility of this application ratione materiae (Operative Part, paragraph 1). In fact, on the evidence (or better absence of any relevant evidence) before us, the application of Article 10 to this Applicant seems to me to constitute an unnecessary and unwarranted further extension of the scope of Article 10.

2. That said, once the majority decided that the complaint under Article 10 was admissible (and therefore fell to be balanced) I agreed with my colleagues that, on the merits, there had been a failure to balance the competing interests before the domestic courts.

3. In cases like the present, the Court is, of course, confronted with three groups of actors whose respective rights and interests fall to be considered.

(a)              the first such group consists of the authors of the relevant user comments. Their user comments plainly attract the protection of Article 10 and the disclosure of their identity and any (consequent) legal action against them is likely to interfere with their right to freedom of expression as does, arguably, the prompt deletion of their comments by the Applicant. However, they are not the applicants before this Court (nor were they parties – directly or indirectly – in the domestic proceedings);

(b)              the second such group consists of the alleged victims of the content of the user comments, in this case K.S., the FPK and H.K., who were seeking to exercise their right of access to court under Article 6 in order to protect the right to their reputation under Article 8. In order to be able to do so and bring civil proceedings for defamation against the anonymised authors of the respective user posts they sought the assistance of the courts under the E-Commerce Act to order disclosure of their identity and sufficient identifying user data to enable them to initiate such proceedings; and

(c)              finally, the third actor is the service provider who in this case happens to be a newspaper but who, on the evidence before the domestic courts, had not established any manual review of the users’ comments by the Applicant’s employees before publication or any other connection between the applicant’s journalistic activities and the user comments.

4. The necessary balance between these multiple competing rights and interests in the context of the provision of information society services on the internet requires careful calibration; something which has, at least at the EU level, been sought to be achieved – with express reference to Article 10 of the Convention - by Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“the E-Commerce Directive”).

It is also the transposition of this Directive into Austrian law, in the form of the E-Commerce Act ( Bundesgesetz, mit dem bestimmte rechtliche Aspekte des elektronischen Geschäfts- und Rechtsverkehrs geregelt werden (E-Commerce-Gesetz – ECG) ), which provided the cause of action for the application of the alleged victims against the Applicant.

5. Section 16(1) of the ECG, transposing almost verbatim Article 14 of the E-Commerce Directive, exempts a host or “service provider” from liability for the content of the information stored under two conditions, namely: (a) the service provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the service provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

6. The resulting limitation on the users’ right of access to court (Article 6) and a victim’s ability to protect their right to their reputation (Article 8) is compensated under Article 18(4) of the ECG (utilising the enabling power in Article 15(4) of the E-Commerce Directive) by imposing on service providers who are exempt from liability under Article 16 a duty to

“... 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 the request [of those third parties] if they demonstrate ( glaubhaft machen ) an overriding legal interest in determining the identity of [that] user and in [establishing the existence of] a particular illegal situation, and furthermore demonstrate that knowledge of such information constitutes an essential prerequisite for the pursuit of legal remedies ( Rechtsverfolgung ).”

7. There are three things worth noting about the legislative scheme under the ECG/E-Commerce Directive:

(a)              for the exemption from liability to apply and for the qualified duty of disclosure to apply, it requires the courts to be satisfied that the service provider has not played an active role allowing it to have knowledge or control of the message posted or data stored (see CJEU in Joined cases C ‑ 236/08 to C-238/08 Google France SARL and Google Inc. v Louis Vuitton Malletier SA et al [2010] ECR I-02417, ECLI:EU:C:2010:159, § 120; Case C-324/09 L’Oréal SA and Others v eBay International AG and Others [2011] ECR I-06011, ECLI:EU:C:2011:474, § 123 and Joined Cases C-682/18 and C ‑ 683/18 Frank Peterson v Google LLC and Others and Elsevier Inc.v Cyando AG ECLI:EU:C:2021:503, § 117), such as by providing assistance to the user which entails, in particular, optimising the presentation or promoting the post (see mutatis mutandis the CJEU in L’Oréal SA and Others at § 123);

(b)              it requires there to be a service agreement between the provider and the user; and

(c)              it requires the alleged victim to demonstrate (i) an overriding legal interest (according to the domestic jurisprudence the required standard is that of not being able to rule out the possibility of a finding of liability) and (ii) that knowledge of this information is an essential ( wesentlich ) pre ‑ requisite for the pursuit of legal remedies.

8. In resisting the proceedings for disclosure of the users’ identity under the ECG before the domestic courts (as well as before this Court – see paragraph 53), the Applicant relied on their right to editorial secrecy/ protection of journalistic sources ( Redaktionsgeheimnis ) as protected in domestic law by section 31(1) of the Media Act (see paragraph 35), a provision which seeks to give effect in domestic law the requirements of Article 10 of the Convention (see inter alia the Austrian Supreme Court’s discussion in decisions 13 Os 130/10g and 6 Ob 133/13x).

9. In the inter-play between these two provisions the Austrian Supreme Court’s consistent case-law has been that:

“... information obtained by one of the persons referred to in section 31(1) of the Media Act [i.e. Media owners, editors, copy editors and employees of a media company or media service] without it having been deliberately made available to that person by someone by reference to his or her activity does not qualify as a communication protected by editorial secrecy.”

(see 13 Os 130/10g cited as authority in 6 Ob 133/13x which, in turn, is cited as authority in the judgment of 15 December 2014 in the present case (6 Ob 188/14m)).

10. In reaching this conclusion, it is clear from the Austrian Supreme Court’s judgments that it has had full regard to the particular importance of the press in the context of the right to freedom of expression under Article 10 as well as to the fact that the protection of journalistic sources is one of the cornerstones of freedom of the press; and it has done so by reference to Article 10 and the Court’s case-law thereunder (including Goodwin v. the United Kingdom , 27 March 1996, Reports of Judgments and Decisions 1996 ‑ II; Financial Times Ltd and Others v. the United Kingdom , no. 821/03, 15 December 2009; British Broadcasting Corporation v. the United Kingdom , no. 25794/94, Commission decision of 18 January 1996; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010).

However, drawing on this Court’s decision in Nordisk Film & TV A/S v. Denmark (dec.) , no. 40485/02, ECHR 2005 ‑ XIII, the Supreme Court also made clear that the applicability of Article 10 in this context is limited to posts/information connected to the journalist’s exercise of his or her function as a journalist. As the Austrian Supreme Court made clear in its decision in the present case (6 Ob 188/14m):

“Editorial secrecy cannot be invoked where a posting has no connection whatsoever with a journalistic activity. There must therefore be at least some intended activity, control or knowledge of a media employee for the protection of section 31 of the Media Act to be invoked.”

11. In Nordisk Film & TV A/S v. Denmark , the Court was concerned with an order compelling a television producer to hand over unpublished programme material to the prosecution. In its decision, the Court, having reiterated that “[f]reedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance” and that “[t]he protection of journalistic sources is one of the cornerstones of freedom of the press” made clear that:

“... there is a difference between the case before it and previous case-law. In the present case, .... In fact, the majority of the persons participating in the programme were not freely assisting the press to inform the public about matters of public interest or matters concerning others, on the contrary. Nor did they consent to being filmed or recorded and thus providing information in that way. Consequently, those participants cannot be regarded as sources of journalistic information in the traditional sense (see for example the definition set out in the explanatory notes to Recommendation No. R (2000) 7, above).

Seen in this light, the applicant company was not ordered to disclose its journalistic source of information.”

12. The basis on which the Court concluded that Article 10 “may” nevertheless apply in such a context was that, in the circumstances of that case, the applicant “was ordered to hand over part of its own research‑material. The Court does not dispute that ... a compulsory hand over of research material may have a chilling effect on the exercise of journalistic freedom of expression”. The posts/information concerned in the present case were significantly further removed from any “journalistic freedom of expression” by the Applicant. In fact, the domestic courts clearly found that the Applicant had failed to establish “any connection with [its] journalistic activity”.

13. In light of the above and the Court’s established case-law, the following aspects of the present case are, in my view, of particular relevance to the assessment of the question whether the Applicant’s Article 10 rights are engaged at all:

(a)              as the majority recognises, the domestic courts were expressly and only seized of and concerned with an application under the ECG for disclosure of the names of the users to enable the alleged victims to bring legal proceedings for defamation in defence of their right to respect for their reputation under Article 8 of the Convention;

(b)              it is difficult to see how such proceedings would ever be/have been possible to initiate by a victim without, at least, disclosure of sufficient identifying information of the user/author to enable a claim to be addressed to him or her;

(c)              unlike in Delfi AS v. Estonia [GC], no. 64569/09, ECHR 2015; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary , no. 22947/13, 2 February 2016; et al,

(i) the domestic proceedings were never about the liability of the Applicant/service provider for the statements made by the users who had posted the comments (paragraph 68); and

(ii) the domestic courts made very clear findings that the Applicant was not a publisher but rather that it was acting as a host or “service provider” for the purposes of the ECG/E-Commerce Directive; a finding made on the basis that it had failed to establish “any connection with journalistic activity”.

Even if, as the majority asserts “[u]ser-generated content on the applicant company’s portal is at least partly moderated” (paragraph 73), the domestic courts were very clear in their finding that, in the circumstances of the posts relevant to this particular case, they had not been so moderated. Contrary to the suggestion by the majority (paragraph 72), this is plainly an essential criterion for the applicability of Article 10 because a finding that the Applicant had been a publisher would have been the foundation for possible (joint or several) liability in relation to the statements made and any “chilling effect” arising therefrom would also have affected the Applicant directly;

(d)              none of the “situations” identified in Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland ((dec.) no. 68995/13, § 71, 12 November 2019 (cited by the majority at paragraph 66) are relevant or engaged in this case. This is especially so as the majority recognises that the posts in issue “could not be considered a source to a journalist” (paragraph 71) and the Applicant “could not rely on editorial confidentiality in the instant case” ( ibid. );

(e)              the service agreement between the users and the Applicant as a host/service provider (in the form of the Applicant’s general terms and conditions) made absolutely clear that the Applicant would disclose user data if (but only if) required to do so by law (see paragraph 7). The users were, therefore, aware that their anonymity when using the platform provided by the Applicant was at best qualified and that they could only rely on the protection provided by such anonymity as long as the disclosure of their identity was not required by law;

(f)              the applications to the courts for disclosure of the identities of the relevant users, and the subsequent orders by the domestic courts, were made on the basis of a clearly established legal basis both as a matter of legislation, domestic and EU, as well as the established case-law of the Austrian Supreme Court;

(g)              there was no evidence at all, either before this Court or (as far as I am aware) before the domestic courts which would indicate the attitude of the relevant users (and, therefore, the primary Article 10 rights holders) to the request for disclosure of their identities (or even the prompt take-down of their posts by the Applicant), whether before or during the proceedings which are the issue of this application or following the execution of the orders made by the Austrian Supreme Court (of which there is also no direct evidence);

(h)              there is neither a suggestion that the Applicant was acting for or on behalf of the relevant users in resisting the application for disclosure nor a suggestion (and even less evidence) that, even if they had been acting to protect the users interests, the domestic courts could not have found a means of protecting the user in question/proposed defendant if s/he (or the service provider on his or her behalf) had advanced a case asserting the users’ need for protection. No such case was made. Furthermore, there seems to me to be no reason to suggest (contrary to the assertion of the majority in paragraph 78) that the Applicant could not have sought the views of the relevant users and, if the users so wished, sought to assert their rights and their interests for anonymity before the domestic courts; and

(i)              finally, there is also no evidence at all of the alleged “indirect effect” on the Applicant’s “rights” (or even on any identifiable interests of the Applicant) caused by the asserted deterrence of users “from contributing to debate” or the asserted “chilling effect” among users posting in forums in general (paragraph 74). Considering that the consistent case-law of the Austrian Supreme Court goes back at least to January 2014 (6 Ob 133/13x) there would have been ample opportunity for such evidence to be obtained.

14. In light of the above there is, in my view, no basis either in the Court’s case-law or in principle why the protection of Article 10 should be yet further extended to a “service provider” under the E-Commerce Directive who, by definition (and on the clear findings of the domestic courts) has not played an active role at all allowing it to have knowledge or control of the content of the posts in question.

15. The majority’s justification by reference to the – co-incidental - identity of this service provider as a “media company” and its purported right to “freedom of the press” is also not persuasive. After all,

(a) “freedom of the press”, as such, is not a term one finds as separately guaranteed right/freedom under Article 10; it is a term primarily used by the Court as shorthand for the right to “freedom of expression” as exercised by the press which is, for that reason, subject to heightened protection by the Court (i.e. the “journalistic freedom of expression” referred to in Nordisk Film & TV A/S v. Denmark ). That right can, however, only be so protected once it has been found to be engaged. On the other hand, there is, in my view, no support for the proposition that there is a residual right to “freedom of the press” which can be invoked solely by reason of the very identity of an applicant as a journalist or member of the press, irrespective of whether the act complained of or the information sought has any connection at all to his or her activity as a “journalist” exercising their right of freedom of expression. The protection provided by Article 10 is functional not personal; and

(b)              it is also not sufficient, in my view, to rely solely on the assertion that “the applicant company’s overall function is to further open discussion and to disseminate ideas with regard to topics of public interest” (paragraph 73). After all, it is no longer possible to limit this recognised “function” to the traditional press (even where they are using non-traditional means of publication). At least since the judgment in Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 168, 8 November 2016, the Court has made clear that “given the important role played by the Internet in enhancing the public’s access to news and facilitating the dissemination of information (see Delfi AS v. Estonia [GC], no. 64569/09 , § 133, ECHR 2015), the function of bloggers and popular users of the social media may be also assimilated to that of ‘public watchdogs’ in so far as the protection afforded by Article 10 is concerned”.

16. This latter point, of course, also carries with it a very real risk that the extension of Article 10 in this context will not be capable of being limited to service providers under the E-Commerce Directive who are also media companies but will ultimately have to be applied to any “bloggers and popular users of the social media”, with the consequent (negative) impact on the ability of victims of abusive posts to seek access to court for the purposes of protecting themselves and their reputation.

17. It is for these reasons that, in the circumstances of this case, I voted against the admissibility of this application and against the applicability of Article 10 to the Applicant.