On 2 February 2016, the Fourth Section of the European Court of Human Rights (ECtHR) came back in judging on the matter of intermediary liability. In ‘MTE and Index v. Hungary’, the ECtHR held that freedom of expression as recognised in Article 10 of the European Convention of Human Rights was violated. The court had to decide whether a non-profit self-regulatory body of Internet content providers (MTE) and an Internet news portal (Index) were liable for offensive comments posted on their websites.
In an earlier decision, the controversial case of Delfi v. Estonia in October 2013, the ECtHR held that an Internet news portal could be liable for the offensive online comments of its readers, and found that Delfi’s liability could be a justified interference to freedom of expression. Consequently, great attention was paid to MTE and Index v. Hungary, as it could be an opportunity for the court to set a more nuanced interpretation on the matter. The facts can be resumed as follows:
The applicants were Magyar Tartalomszolgáltatók Egyesülete (“MTE”) and Index.hu Zrt (“Index”). On 5 February 2010, MTE published an article criticising two real estate management websites’ business practices. Index wrote about that article on its website, and copied its full text. Both articles attracted comments from readers attacking the real estate websites in question. In response, the two real estate websites brought a civil action against Index and MTE. The Hungarian courts found that readers’ comments were offensive and unlawful, and that Index and MTE were liable for those comments.
After exhausting all local remedies, Index and MTE brought the case before the ECtHR. In its judgement, the Court held that their right to freedom of expression was violated. At the same time, the Court specified that the present case was different from the Delfi case as the comments were “notably devoid of [their] pivotal elements of hate speech and incitement of violence”. Also, it clarified that Delfi was a commercially run Internet news portal, whereas one of the applicants in this case was not (MTE).
However, “the Court considered that the Hungarian courts, when deciding on the notion of liability of the applicants’ case, had not carried out a proper balancing between competing rights involved, namely between the applicants’ right to freedom of expression and the real estate websites’ right to respect for its commercial reputation”. Accordingly, the Court considered Article 10 of the European Convention of Human Rights had been breached.
It is interesting to note that the Court gave a new interpretive pattern for the Delfi ruling.
New perspectives were raised with regard to the notice-and-take-down system, which now seems to be legitimate in the eyes of the Court. In fact, in the same ruling the ECtHR “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”. This would reduce what was decided in the Delfi case, which appeared to encourage the duty of general monitoring of information. Now, the scope of that ruling appears to be narrowed to cases of hate speech and incitement to violence.
Even if this case could seem to set a more positive interpretation on the matter of intermediary liability, the truth is that the Court continues to ground its interpretative approach from the Delfi case. That asseverates what EDRi already observed in its paper for the Council of Europe on Human Rights violations online: “The current enforcement mechanisms used to fight hate speech, defamation and other online infringements, that are often supported and encouraged by courts, may go too far and impair legitimate rights of internet users as a collateral effect”.
In conclusion, the ECtHR seems to be willing to depart from the much criticised Delfi ruling, but it seems to be limited in its ability to do this.
EDRi-gram: ECtHR: Internet News Portal Liable For The Offensive Online Comments (23.10.2013)
EDRi paper “Human Rights Violations Online” for the Council of Europe (04.12.2014)
Free expression vs reputational rights: liability of online intermediaries (02.02.2016)
MTE v Hungary: is the ECtHR rewriting Delfi v Estonia? (02.02.2016)
(Contribution by Elisabetta Biasin, EDRi intern)