On 2 February 2016, the European Court of Human Rights (ECtHR) delivered a judgement on Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary (MTE and Index.hu). The case concerned the liability of online intermediaries for user comments. The topic was discussed in the 2^nd year of REVEAL.

 

Using the criteria established in the Delfi AS case of 16 June 2015, the Court found that there had been a violation of Article 10 of the European Convention of Human Rights, the right to freedom of expression. Unlike in Delfi AS, the Court decided that the incriminated comments in this case did not amount to hate speech or incitement to violence. Pieter-Jan Ombelet and Aleksandra Kuczerawy from KU Leuven analyse the criteria that were taken into account by the ECtHR in both cases, and highlight some of the implications of the recent judgement.

Facts and Background

On 5 February 2010, the self-regulatory body of Hungarian Internet content providers MTE published an opinion about two real estate management websites, owned by the same company. In the opinion, MTE denounced the company’s business strategies and customer treatment. Shortly thereafter, certain vulgar and offensive pseudonymous comments were posted under the opinion. The same type of comments appeared when the full text of the opinion was later reproduced by the internet portal vg.hu and consumer protection column Index.hu.

On 17 February 2010, the company operating the real estate management websites brought a civil action before the Budapest Regional Court, claiming that the opinion and its comments had infringed its right to good reputation. The referral to the Budapest Regional Court prompted MTE and Index.hu to delete the impugned comments. The Regional Court found that the comments went beyond the acceptable limits of freedom of expression. The Regional court and later the Court of Appeal rejected the applicants’ argument that they were mere passive intermediaries and therefore covered by the liability exemption in the E-Commerce Directive and its implementation in the Hungarian Electronic Commercial Services Act no. CVIII of 2001. Under these acts, a passive intermediary has to remove (or block access to) the infringing content by third party upon a complaint, if he wishes to claim immunity (‘notice-and-take-down’). The Hungarian Supreme Court (‘Kuria’) shared the Court of Appeal’s view in finding that the applicants’ liability consisted of their having allowed the harmful publication’ (paragraph 22). MTE and Index.hu appealed to the ECtHR, arguing that the domestic courts unduly restricted their freedom of expression.

The Court’s views

All parties involved agreed that there had been an interference with the applicants’ freedom of expression in the current case. The Court agreed that the interference was prescribed by law (Hungarian Civil Code) and had a legitimate aim of protecting the rights of others (paragraph 52). The main questions was whether the interference was ‘necessary in a democratic society’. The Court observed that  the case required striking a balance between on the one hand the freedom of expression (Article 10 of the Convention) and on the other hand the right to respect for private life (Article 8 of the Convention) of the natural person behind the company (paragraph 58 and 67).

The ECtHR’s judgement makes a direct comparison between this case and its recent judgement on Delfi AS. The ECtHR explicitly stated that ‘the present case is different’, as the third party comments did not constitute clearly unlawful speech, and they certainly did not amount to hate speech or incitement to violence (paragraph 64). The Court nevertheless deemed it appropriate to re-use the same criteria that it developed in the Delfi AS case to assess the interference in question:

• (i) The context (and content) of the comments – the ECtHR regarded the comments published under MTE’s statement as relating to a matter of public interest. The business conduct of the online real estate companies had already generated numerous complaints to domestic consumer protection groups. The comments were found to be offensive and vulgar value judgements; however, the Court considered the expressions used as commonly-found on internet portals, thereby reducing their impact (paragraph 77).
• (ii) The liability of the actual authors of the comments – the ECtHR noted that the Hungarian domestic courts did not examine the feasibility of identifying the actual authors of the comments, nor did it analyse the proportionality of the division of liability between the actual authors and the internet portals. The ECtHR considered that MTE and Index’s liability for the comments is ‘difficult to reconcile with the existing case-law according to which “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (ECtHR Jersild v. Denmark)’.
• (iii) The applied measures – the Hungarian domestic courts decided that by allowing unfiltered comments, the applicants should have expected that some of the comments would be unlawful. Both MTE and Index had a notice-and-take down system in place and both provided a disclaimer in their terms and conditions which prohibited unlawful comments. In addition, Index had a team of moderators in place, whose job it was to monitor and act on comments. The domestic courts ruled that these measures were not sufficient; however the ECtHR disagreed. It found that the domestic courts’ expectations required ‘excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet’ (paragraph 82).
• (iv) Consequences for the parties involved – With regard to the online real estate companies, the ECtHR emphasised that there were already ongoing inquiries into their business conduct. Therefore, the Court was not convinced that the impugned comments made any additional (negative) impact on the attitude of consumers (paragraph 85). MTE and Index were ordered to pay the court fees and legal representation fees, but no damages. The decisive question however is the manner in which internet portals can be liable for third-party comments. The rulings of the domestic courts could have foreseeable negative consequences if internet portals react by closing their online spaces for public comment as a preventive measure, therefore having a serious chilling effect on online freedom of expression (paragraph 86).

The ECtHR concluded that the interference was a violation of Article 10 (Freedom of Expression) as the Hungarian domestic court did not balance the interests of the online real estate company and MTE and Index (paragraph 88), and the comments did not constitute hate speech (paragraph 91).

Implications of the judgement

In the concurring opinion, the ECtHR’s Judge Kūris explained that despite the opposite outcomes, the present judgement does not depart from the principles of Delfi AS (paragraph 2). The Court, it seems, used this opportunity to clarify that the Delfi AS judgment was, in fact, limited in scope to “clearly unlawful” comments consisting of hate speech and incitement to violence. In the Hungarian case, where the comments were merely vulgar and offensive, implementing a notice-and-take down mechanism was considered sufficient to balance the rights and interests of the parties involved (see paragraph 91). This means that, in combination with the Delfi AS ruling, it is acceptable for offensive comments to be deleted upon notification, while higher standard of care need to be applied to hate speech, which requires portals to remove material on their own initiative (see also paragraph 91).

The distinction is welcomed, but the Court ultimately does not address the fact that in order to detect hate speech, monitoring of all comments will most likely need to be performed. This has significant resource (and other) implications. Even though MTE and Index.hu adds nuances to the Delfi AS ruling, the Court’s decision in the MTE and Index.hu case effectively could still lead to general monitoring. This would be a significant outcome, especially in the light of Article 15 of the E-Commerce Directive, which prohibits imposition of a monitoring obligation, other than in specific cases and with an order by a national court or administrative authority (see that analysis by the CJEU in Scarlet v. Sabam). The conclusion could be that, when it comes to online intermediaries, Articles 14 and 15 of the E-Commerce Directive offer more protection than Article 10 of the ECHR.

The MTE and Index.hu ruling, similarly as Delfi AS, will not directly affect the REVEAL platform. This is mainly because in REVEAL the platform provider does not publish any content expressing its own opinions but merely facilitates access to content published by others. Moreover, the REVEAL platform will not provide a section to publically comment on the third party content. Nevertheless, the judgement was eagerly anticipated by the project partners, who were interested to see how the Court would further develop its stance regarding liability for online user generated content. The issue was examined in the REVEAL deliverable D1.2a Legal / regulatory requirements analysis – Intermediary liability for third party content. Despite the functional differences between the platforms concerned in both of the ECtHR cases and REVEAL, the consortium decided to implement measures such as notice-and-take down, to make sure that third parties’ rights are respected.

This article gives the views of the authors, and does not represent the position of the LSE Media Policy Project blog (where parts of the article appeared originally), nor of the London School of Economics, nor the REVEAL project consortium.