Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary
The ECHR ruled that the Hungarian courts had failed to balance the right to protect commercial reputation and the right to freedom of expression when they ruled that a news website could be liable for offensive and vulgar user comments.
The ECHR distinguished this case from a recent case it had heard, Delfi v Estonia, because the comments in that were so clearly unlawful, amounting to hate speech and incitement to violence. In Delfi, the standard of monitoring by the online news service was therefore expected to be higher because the website had a known problem with comments of that nature. It was also noted that in the present case, unlike Delfi, the website had an effective notice and takedown system in place.
The defendants in this case were a self-regulatory body of Hungarian Internet content providers (Magyar) and the owner of one of the major news portals in in Hungary (Index). The defendants did not moderate user content on the site in question in any way, and their sites carried disclaimers and terms forbidding the posting of unlawful content.
The claim against them arose from comments posted by users under an opinion piece that accused a real estate company of unethical commercial practices. Index had immediately removed the offending comments after becoming aware of them and argued that it could not be held liable for all reader posts.
The real-estate company argued that Index should be liable for those comments, and was successful in their claim (up to the supreme court of Hungary). However the case was referred to the ECHR as Index argued that making news websites liable for user comments 'would have serious adverse repercussions for the freedom of expression and the democratic openness in the age of the internet'.
The ECHR placed an emphasis on proportionality, particularly when balancing two opposing rights (i.e. in this case freedom of expression and right to private life / protection of reputation).
The ECHR concluded that the Hungarian courts had a right to interfere with Magyar and Index's right to freedom of expression because this interference pursued the legitimate aim of protecting the rights of others. However, such interference also needed to be necessary in a democratic society. This means that the interference must have been proportionate to the legitimate aim pursued.
In analysing this, the ECHR looked into the following issues relating to freedom of expression in terms of internet intermediaries in order to assess the proportionality of the Hungarian court's decision:
- Context and content of the impugned comments
It was noted that the comments were posted in the context of a dispute over the business policy of the company perceived as being harmful to a number of clients and that the business was already the subject of a large number of client complaints.
- Liability of the authors of the comments
The ECHR stated that there must be a strong reason for punishing a journalist for assisting in the dissemination of third-party statements as this would seriously hamper the contribution of the press to discussion of matters of public interest. The Hungarian courts had not considered the possibility of liability of the individuals who had posted the comments.
- Consequences of the comments for the injured party
The ECHR was not convinced that the comments were capable of making any additional significant impact on the attitude of consumers towards the company, as the company in question was already subject to many inquiries regarding its business conduct. The domestic courts had failed to take this into account.
- Consequences for the applicants
The ECHR placed particular emphasis on the fact that the domestic court had not made any assessment of how their decision would affect freedom of expression on the internet. There was no balancing act performed between this and the interests of the real-estate company. The ECHR stated that this called into question the adequacy of protection of freedom of expression on a domestic level.
Although coming to a different conclusion than in Delfi, the same reasoning and principles were followed. This creates a fine line which is fact specific when analysing intermediary liability in these circumstances. Important factors include:
- whether the language was merely offensive or whether it tips the balance into unlawful or inciting violence;
- whether appropriate notice and takedown policies are in place and whether these are sufficient to balance the rights and interests of all parties; and
- whether the article on which the comments are made is devoid of factual basis or provoking gratuitously offensive comments.
The ECHR explained that, despite the different outcomes, Magyar did not depart from the principles of Delfi. The judgment does, however, clarify that the Delfi judgment was limited in scope to "clearly unlawful" comments. Where comments were merely vulgar and offensive, a notice take-down mechanism was sufficient to balance the interests of the parties.
Interpreted together, it would appear that it is acceptable for offensive comments to be deleted upon notification, while higher standards need to be applied to hate speech which must be removed on the website operator's initiative. This distinction, though welcome, does not address the fact that in order to detect hate speech all comments would ultimately need to be monitored.
Both the Delfi and Magyar cases generated lots of sensationalist headlines about the liability of intermediaries. Those headlines probably overstate the reality of these decisions. It is important to point out that this was not a civil case about the scope of the hosting defence. It is a decision from the ECHR which only has jurisdiction over potential breaches of the European Convention on Human Rights (the "Convention"). The European Court of Human Rights assesses whether a Member State has incorrectly implemented the Convention, rather than dealing with civil disputes. It is the CJEU which has ultimate jurisdiction in the EU over preliminary references regarding civil disputes. The CJEU decisions in Google Adwords (2010) and L'Oreal v eBay (2011) remain the relevant authorities which have expanded on art 14 e-Commerce Directive on the hosting defence and intermediary liability. These ECHR cases appear to be broadly consistent with the "active/passive intermediary" and "diligent economic operator", concepts from Google Adwords and L'Oreal v eBay, but are concerned with Member States' implementation of the Convention, rather than serving as authority on the hosting defence.
Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary, Application 22947/13, 2 February 2016