A few months after the now infamous decision Delfi v Estonia of the Grand Chamber of the European Court of Human Rights (ECtHR) [for background, see my earlier post here], the Fourth Section of the Court issued on 2 February 2016 a judgement (MTE v Hungary) dealing with similar issues.
Starting with the end of the judgement first, the Fourth Section held that there had been a violation of Article 10 of the Convention, i.e. that the violation could not be justified on the ground of Article 10(2).
Readers might remember that in Delfi v Estonia, the Grand Chamber had held in June 2015 that the interference with Article 10 was ultimately justified.
Why different solutions? The first, most obvious, reason seems to be that the facts are simply not the same as the facts in Delfi v Estonia. Logically, MTE v Hungary would thus need to be distinguished from Delfi v Estonia.
Let us briefly recall the facts then of this latest case. The first applicant, MTE is the “self-regulatory body of Hungarian Internet content providers, monitoring the implementation of a professional code of Internet content providing and a code of ethics, as well as operating an arbitration commission whose decision are binding on its eleven members”. The second applicant, Index, is a company owning “one of the major Internet news portals in Hungary”. [Didn’t the ECtHR also noted in Delfi v Estonia that Delfi was one of the major Internet news portals in Estonia?]
Both applicants, it seems, have a comment section on their websites. Importantly, the comments were not previously edited or moderated by the applicants. A system of notice-and-take-down was also in place. [Another point in common with Delfi v Estonia!]. As regards the second applicant MET, though, partial moderation was happening once the comments had been uploaded.
On 5 February 2010, MTE “published an opinion under the title “Another unethical commercial conduct on the net” about two real estate management websites, owned by the same company”. Thereafter followed the uploading of user-generated comments not really friendly to the two websites. The comments comprised the terms ‘rubbish websites’ or even… ‘hedgehogs’.
The company running the two websites brought a civil action against our applicants, without sending a prior notification, claiming that the applicants had violated its right to good reputation. [A lawyer letter had been sent to Delfi as you might remember before the proceedings… but should the letter really make the difference? Very importantly in MTE v Hungary it is a legal person who complained about the violation of its right to good reputation and not a natural person! Also importantly, it seems, one of the applicants is a non-profit entity!].
After a first instance decision and an appeal, the Supreme Court of Hungary (the Kuria) held that “the applicants, by enabling readers to make comments on their websites, had assumed objective liability for any injurious or unlawful comment made by those readers”. Notably the applicants were not intermediaries within the meaning of the statute that had been adopted to transpose the e-commerce Directive. The Kuria imposed HUF 75,000 on each applicant “as review costs, including the costs of the plaintiff’s legal representation”. [HUF 75,000 is about 240 euros. Delfi had been asked to pay slightly more, i.e. 320 euros].
After the civil Court, it was the turn of the constitutional Court to rule that the liability of press organs such as MET “as applied in order to protect personality rights is constitutional”.
MET and Index had no choice but to knock at the door of the ECtHR.
So, how come the ECtHR this time held that Article 10 had been violated? The following points are worth noting:
- “[I]t was not in dispute between the parties that the applicants’ freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts’ decisions”. . The ECtHR adds right after this statement that it “sees no reason to hold otherwise”. And actually it would seem that the ECtHR is convinced by this argument. The applicants’ freedom of expression is infringed according to the ECtHR in the sense that the applicants “provided forum for the exercise of expression rights, enabling the public to impart information and ideas”. . Furthermore, the ECtHR continues that imposing liability on the applicants “may have foreseeable negative consequences on the comment environment of an Internet portal, for example by impelling it to close the commenting space altogether. For the Court, these consequences may have, directly or indirectly, a chilling effect on the freedom of expression of the Internet”. . [I am wondering naively, is the Internet the same thing as the sum of all operators of news portals? But it maybe that I am being peaky…].
- If there is a prima facie violation of Article 10, the only question that is really left to the ECtHR is whether the violation can be justified. The ECtHR uses its traditional three-prong test to answer the question in the negative. First of all, the interference is prescribed by law. The national Civil Code “made it foreseeable for a media publisher running a large Internet news portal for an economic purpose and for a self-regulatory body of Internet content providers, that they could, in principle, be held liable under domestic law for unlawful comments of third-parties”. The ECtHR refers to Delfi v Estonia where it found that “the applicants was in a position to assess the risks related to their activities and that they must have been able to foresee, to a reasonable degree, the consequences which these could entail”. . Once again at this stage, the role of the ECtHR is not to say whether the national courts got it right or wrong, or whether they correctly applied EU law. [The same disclaimer was found in Delfi v Estonia as well!].
- There is no problem with the aim pursed by the measure at stake, i.e. the imposition of liability, as in the words of the ECtHR protecting the rights of others is a legitimate aim.
- The real issue is thus whether the imposition of liability was “necessary in a democratic society in order to achieve the aim pursued”. This is where the ECtHR seems to be willing to depart from its line of reasoning in Delfi v Estonia…. although it keeps on referring to Delfi v Estonia ….of course!
- It is true that MET v Hungary is not an exact copy of Delfi v Estonia, as the plaintiff is a legal person. Yet personality rights, such as the right to good reputation (which is a component of the right to respect for private life), is a prerogative of natural persons and natural persons only (for the purposes of the ECHR). Nevertheless, the ECtHR “proceeds under the assumption that – giving the benefit of the doubt to the domestic courts’ stance identifying a valid reputation interest – there was to be a balancing between the applicant’s Article 10 rights and the plaintiff’s Article 8 rights”. .
- The ECtHR observes that MET v Hungary is different from Delfi v Estonia because “the incriminated comments did not constitute clearly unlawful speech; and they certainly did not amount to hate speech or incitement to violence”. . [What is the ECtHR doing here? Isn’t it actually examining the content of the comments themselves, something it had refused to do in Delfi v Estonia?] The ECtHR goes on stating that “the issue in the instant case is not defamatory statements of fact but value judgments or opinions, as was admitted by the domestic courts”.  [Was this really admitted by the national courts? Isn’t it the ECtHR’s own finding?]. What is more, the ECtHR loudly recognises, while referring to Delfi [really cheeky!], that “regard must be had to the specificities of the style of communication on certain Internet portals. For the Court, the expressions used in the comments, albeit belonging to a low register of style, are common in communication on many Internet portals – a consideration that reduces the impact that can be attributed to those exceptions”.  Going even further, the ECtHR adds that it is not “convinced that the comments in question were capable of making any additional and significant impact on the attitude of the consumers concerned”. .
- The ECtHR also mentions the fact that MET v Hungary is different from Delfi because MET, at least, is a non-profit association. [But really what is the point of mentioning this when ultimately the decision also concerns an organisation with economic interests and both organisations are treated in the same way?]
- Not only does the ECtHR examine the content of the comments, but also it finds that the topic of the comments was a matter of public interest! . [Didn’t we have a matter of public interest in Delfi v Estonia as well?]
- This is where it is getting really interesting: the ECtHR seems to be willing to recognise that imposing liability upon the applicants implies imposing an obligation to generally monitor their systems! In the words of the ECtHR “this amounts to requiring excessing and impracticable forethought capable of undermining freedom of the right to impart information on the Internet”  [Wow!].
- Finally and this is a masterstroke of the highest level, the ECtHR states that “in the case of Delfi AS, the Court found that if accompanied by effective procedures allowing for rapid response, the notice-and-take-down-system could function in many cases as an appropriate tool for balancing the rights and interests of all those involved”.  [Pow! Where the hell did the ECtHR hold this in Delfi v Estonia?]
Do we like the Fourth Section better than the Grand Chamber or even the First Section?
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Just to add, that It is true the ECtHR does respond to the applicant’s claim that the Court ”should have due regard to the notice-and-take-down system system that it had introduced” and states that if “accompanied by effective procedures allowing for rapid response, this system (of notice-and-take-down) can in the Court’s view function in many cases as an appropriate tool for balancing the rights and interests of all those involved” (at para. 159). However, it would seem that its response remains obiter as it does not apply it to the case at hand. Moreover, although the ECtHR does make such a statement, its position is not really clear. To be more precise, what is not clear in Delfi v Estonia is the extent to which a notice-and-take-down procedure will do the job in most cases for providers whose activity is similar to that of Delfi.
First of all, the ECtHR “considers that it was sufficiently established by the Supreme Court that the applicant company’s involvement in making public the comments on its news articles on the Delfi news portal went beyond that of a passive, purely technical service provider”. Under EU law (obivously the ECtHR is not the CJEU), it seems impossible to benefit from Article 14 (of the e-commerce Directive) if the provider is not passive.
Second, the ECtHR takes for granted that the comments are clearly unlawful and included hate speech and speech inciting violence. It then slighly modifies its formulation and says: “the impugned comments in the present case, as assessed by the Supreme Court, mainly constituted hate speech and speech that directly advocated acts of violence”. What does “manifestly/clearly” unlawful mean? Is “mainly” sufficient?
Third, in Delfi the ECtHR does not really seem to be concerned about monitoring obligations.
What is really “clever” in MET v Hungary is to clarify the fact that Delfi is really the exception. At the same time it seems that the methodoloy used in MET is slightly different from the one used in Delfi since in MET the ECtHR really looks at the comments.
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