University of Amsterdam
Faculty of Law
Internet Intermediaries as a Journalistic Activity of a Particular Nature
and Freedom of Expression
Internet Intermediaries as a Journalistic Activity of a Particular Nature
and Freedom of Expression
Ana-Marija Mlinarić Student number: 11096799
Master Thesis: International and European Law, Track Public International Law (LLM) University of Amsterdam, Faculty of Law
Thesis Supervisor: Dr. Rosanne van Alebeek 16 January 2017
Table of Contents
I. Introduction ... 6
II. Freedom of expression and the press ... 9
2.1. Freedom of expression and its restrictions ... 9
2.2. Liability of the press for the statements of others ... 10
2.3. „Hate speech‟ in the media ... 10
2.3.1. Facts of the case: Sürek v. Turkey (No 1) ... 14
2.3.2. Facts of the case: Jersild v. Denmark ... 15
2.4. Freedom of expression and the Internet ... 16
III. Liability of Internet news providers for user-generated content ... 19
3.1. Facts of the case: Delfi v. Estonia ... 19
3.2. Facts of the case: Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary ... 21
3.3. Sanctioned liability in Delfi and MTE v. the liability of traditional press under Article 10 of the ECHR ... 24
3.4. Concluding remarks ... 27
IV. Consequences of the sanctioned liability of Internet news providers for third-party content ... 29
4.1. Potential impact on the freedom of expression of Internet users ... 29
4.2. Consequences for the practice of Internet news providers ... 30
V. Alternatives to the sanctioned liability of Internet news providers ... 32
VI. Conclusions ... 35
4
List of abbreviations
ECHR European Convention on Human Rights
5
Abstract
Freedom of expression forms the core of every democratic society. It is closely connected to the press, which imparts information and ideas on matters of general interest. One of the major challenges standing before the press is to preserve the freedom of expression and yet not to infringe the rights of others. The endeavour became even more daunting with the advent of the Internet, and the exchange of ideas and information through the comments areas on Internet news portals. The comments area quickly turned out to be a forum for public debate. Still, that same forum can easily become a vehicle for „hate speech‟ propagation. That raised the question of the liability of Internet news portals for comments made by users. This thesis employed the descriptive methods to elucidate the current position of the Court on this point. It found that the Court approved the liability of Internet news providers in case of third-party „hate speech‟ which had not been removed without delay and without notice from others. Following the Court‟s reasoning in Delfi AS v. Estonia and Magyar
Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, the approach of the Court and
its cogency are critically analyzed. Additionally, the thesis addresses the consequences of the warranted liability on Internet users‟ freedom of expression, and for the practice of Internet news portals. It argues that the „hate speech‟ concept is not sufficiently well-defined to provide guidelines for pre-monitoring and filtering users‟ comments. Consequently, the system as sanctioned by the ECtHR may present a danger to freedom of expression since it easily leads to private censorship and closure of the comments environment. Along those lines, Internet news portals will not be able to fulfil their role of a „public watchdog‟, whereas end users‟ freedom of expression will be disproportionately interfered with. Following an analysis of the aforesaid consequences, some alternatives to the sanctioned liability of Internet news providers will be explored.
6
Chapter 1.
Introduction
The European Court of Human Rights (hereinafter: ECtHR or the Court) has frequently emphasized in its jurisprudence the central role of press in a democratic society.
Dissemination of information and ideas on all public matters is of crucial importance, especially the publication of statements made by another person, and it should be hampered only if there are particularly strong reasons for doing so.1 Journalistic freedom also implies that Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR or the Convention) is applicable not only to „information‟ or „ideas‟ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.2 Still, the exercise of freedom to receive and impart information comes with duties and
responsibilities,3 and the press should not overstep certain bounds.4
Appearance of the Internet changed the exercise of freedom of expression. Its accessibility and facilitated access to the news enhanced the dissemination of information in general,5 while users acquired a new platform for exchanging ideas and information. On the other hand, the aforesaid features created a higher risk to the enjoyment of the rights of others, notably to the protection of reputation, which is protected by Article 8 of the ECHR.6 Along those lines, the ECtHR has addressed the particular nature of the Internet, acknowledging differences in activities of traditional press and audio-visual media on the one hand, and Internet-based media on the other.7 Subsequently, the issue of Internet intermediaries‟ obligation concerning the editing of user-generated content has emerged. For the purposes of this thesis, Internet intermediaries will be regarded as „hosts who provide their own content and open their intermediary services for third parties to comment on that content.‟8
1
ECtHR, 23 September 1994, Jersild v. Denmark [GC], [35] (appl. no. 15890/89).
2
ECtHR, 7 December1976, Handyside v.The United Kingdom, [49] (appl. no. 5493/72).
3
Convention for the Protection of Human Rights and Fundamental Freedoms (EuropeanConvention on Human Rights, as amended) (ECHR) Art10.
4
Jersild (n 1) [31].
5 ECtHR, 18 December 2012, Ahmet Yildirim v. Turkey, [48] (appl. no. 3111/10). 6
ECtHR, 16 June 2015, Delfi AS v. Estonia [GC], [133] [137] (appl. no. 64569/09).
7
ibid [113].
8
7
Delfi AS v. Estonia9 was the first case where the ECtHR had been called upon to examine the judgment of a domestic court concerning the liability of an Internet news portal for users‟ comments. The impugned speech was exercised by users and disseminated via the comment environment attached to the article published by the news portal.10 Since the ECtHR had previously ruled that holding newspaper liable for the content of published letter can in
certain circumstances be compatible with Article 10 of the ECHR,11 this raised the question of the extent to which Internet news portals could also be held liable for user-generated content. The Court found that under the circumstances of the case, „where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court‟s case law ... the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals‟.12 Such liability may be imposed if Internet news providers fail to remove clearly unlawful statements „without delay, even without notice from the alleged victim or from third parties.‟13
Only half a year later the ECtHR delivered a second judgment in the matter of Internet news providers‟ liability for third-party content. In MTE v. Hungary14 the facts were similar to the ones in
Delfi, but the outcome was different. In the Court's view, this case did not concern utterances
of „hate speech‟ and direct threats to the physical integrity of individuals. Accordingly, a demand of filtering users‟ comments would amount to „requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the
Internet.‟15
The latter judgment raises the question as to whether MTE in reality altered the Court‟s stance taken in Delfi. This thesis sets out to clarify the Court‟s current position on the compatibility of Internet intermediaries‟ liability for user-generated content with Article 10 of the
Convention. It will critically assess the case-law on this point, and also scrutinize the cogency of the Court‟s present approach in the light of the Court‟s jurisprudence related to Article 10 and the traditional press. Finally, the thesis will examine the consequences of the sanctioned liability by addressing the following questions: Do the ECtHR's hate-speech standards provide sufficient guidance for pre-screening user comments? If not, will this not lead to the 9 Delfi (n 6). 10 ibid [31]. 11
ECtHR, 8 July 1999, Sürek v. Turkey (No1) [GC] (appl. no. 26682/95).
12 Delfi (n 6) [159]. 13
ibid.
14
ECtHR, 2 February 2016, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary (appl. no. 22947/13).
15
8 banning of more comments than is strictly necessary? In other words, is it not arguable that the system as affirmed by the ECtHR will lead to disproportionate interferences with the freedom of speech of users?
The thesis will employ both descriptive and normative approaches, as well as explanatory and evaluation methods. Chapter 2 will present the „hate speech‟ concept and will use the
descriptive method in order to briefly introduce the Court‟s jurisprudence on the liability of the traditional press when disseminating statements of others. It will also succinctly reflect on the freedom of expression in the medium of Internet. Chapter 3 will provide an overview of the Court‟s case-law regarding the liability of Internet news portals for third-party content, and critically analyze the Court‟s current position. In this perspective, it will evaluate the clarity of the „hate speech‟ concept and appraise whether the particular nature of the Internet was sufficiently regarded by the Court in the cases concerned. This will be followed by Chapter 4, which will assess the possible consequences of the sanctioned liability both on the freedom of expression of the Internet users, and for the practice of Internet news portals. Lastly, Chapter 5 will utilize the normative approach to envision possible alternatives to the liability of Internet news providers, while the concluding remarks will be summarized in Chapter 6.
9
Chapter 2.
Freedom of expression and the press
2.1. Freedom of expression and its restrictions
Freedom of expression constitutes one of the foundations of a tolerant, pluralist and
broadminded democratic society.16 When a publication is related to a debate on a matter of general concern, it enjoys a higher level of protection.17 As to the scope of freedom of expression, it includes the right to impart information and the right to receive it. Article 10 of the ECHR grants the freedom of expression to „everyone‟, both natural and legal persons. Whether or not profit is pursued is irrelevant.18 Moreover, it protects not only the content of information, but also the various media, including the Internet.19 The style is seen as a part of the communication, and is protected along with the content of the expression.20
This right is not absolute and can be limited. Restrictions must pursue a legitimate aim, as stipulated by paragraph 2 of Article 10.21 Likewise, the interference needs to be proportionate to the legitimate aim pursued,22 and has to be prescribed by law. The term „prescribed by law‟ consists of the impugned measure having a legal basis in domestic law and the quality of law. The latter implies the law should be accessible to the persons concerned and foreseeable with sufficient precision as to its effects, so the actor can regulate his conduct.23 Lastly, the
infringement of the freedom of expression must be necessary in a democratic society.24 According to the case-law of the ECtHR, the requirement of necessity is usually the most challenging one, since it requires the reasons for the interference by national authorities to be „relevant and sufficient‟. The competent domestic bodies, given their direct contact with the vital forces of their countries, are in a better position to assess the imminence of the
16 Handyside (n 2) [49].
17
ECtHR, 22 October 2007, Lindon, Otchakovsky-Laurens and July v. France [GC], [48] (appl. nos. 21279/02 and 36448/02).
18
ECtHR, 24 February 1994, Casado Coca v. Spain, [35] (appl. no. 15450/89).
19
F Jacobs R White and C Ovey The European Convention on Human Rights (6th edn Oxford University Press 2014), 435-436; ECtHR, 10 March 2009, Times Newspaper Ltd (Nos 1 and 2) v. United Kingdom (appl. no. 3002/03 and 23676/03).
20
MTE (n 14) [77]; ECtHR, 19 July 2011, Uj v. Hungary [20] (appl. no. 23954/10).
21
The legitimate aim pursued can be: the protection of the general interest; protection of the individual rights of others, or the maintenance of the authority and impartiality of the judiciary.
22
Delfi (n 6) [131]. 23
ibid [120].
24
10 interference.25 Consequently, the Court‟s task is only of supervisory jurisdiction and is
performed in a way that the interference is assessed in the light of the case as a whole.
2.2. Liability of the press for the statements of others
By imparting ideas and information on all matters of public interest in conformity with its duties and obligations, the press fulfils its fundamental role of a „public watchdog‟.26 It should be noted that today‟s term of the press is much wider than initially. The press encompasses different forms of print and electronic media, where audio-visual media and the Internet are particularly important because of their strong impact on the audience. Because the press is vital in democratic societies, exceptions to freedom of expression call for a narrow
interpretation and must be convincingly established.27
In the same vein, the dissemination of third parties‟ statements represents a contribution of the press to discussions on matters of public concern. National authorities must exercise great caution when punishing the press for disseminating statements made by a third party. Any punishment, or even threat of punishment, might compel the press to censor itself, thus diminishing its role and purpose of a „public watchdog‟. However, as mentioned previously, Article 10 of the ECHR does not afford unrestricted freedom of expression. It is the aim of the following section to, firstly, delineate the contours of „hate speech‟ under the Convention, and secondly, to explore under what conditions journalistic speech may be interfered with when it disseminates the „hate speech‟ of others.
2.3. ‘Hate speech’ in the media
The Court uses two approaches when dealing with incitement to hatred and freedom of
expression. When combating certain types of „hate speech‟, the Court applies Article 17 of the ECHR, the so-called abuse clause.28 This article is employed only „on an exceptional basis and in extreme cases‟29
where the person seeks to use a certain right under the Convention „for ends contrary to the text and spirit of the Convention.‟30
Especially, when the statements of the applicant „sought to stir up hatred or violence‟ and the applicant „attempted to rely on 25 Handyside (n 2) [48]. 26 Jersild (n 1) [31]. 27
ECtHR, 26 November 1991, Observer and Guardian v. The United Kingdom, [59] (appl. no. 13585/88).
28
H Cannie and D Voorhoof „The Abuse Clause and Freedom of Expression in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?‟ [2011] 29 Netherlands Quarterly of Human Rights 54, 54.
29
ECtHR, 15 October 2015, Perinçek v. Switzerland [GC], [114] (appl. no. 27510/08).
30
11 the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it‟.31
In sum, Article 17 is invoked when dealing with a clearly racist, xenophobic, anti-Semitic speech or statements denying, disputing, minimizing, or condoning the Holocaust and neo-Nazi ideas, which are denied the protection of Article 10.32 However, as demonstrated in Perinçek v. Switzerland, the approach of the judges of the ECtHR to Article 17 has not been uniform.33 Since it is hard to define the boundaries of Article 17, the Court has kept its options open.34 Keeping in mind that Article 17 eliminates the balancing test afforded by Article 10 and the speech is restricted solely based on its content,35 outside of what are perceived as the most „egregious and odious forms of hate speech‟, the Court has a tendency to assess the restrictions on freedom of expression within the scope of Article 10.36
The approach under Article 10 involves an examination of the interference with the freedom of expression in the light of the case as a whole, taking into account all factual and legally relevant elements.37 The restriction is not based only on the content of the speech. Instead, any limitation is subject to the scrutiny of paragraph 2 of Article 10. Still, even with the application of Article 10, some fundamental questions remain: How to determine „hate
speech‟? What are the relevant factors the ECtHR takes into consideration when assessing the necessity of interference with the freedom of expression? With regard to the content of „hate speech‟, it needs to be noted that there is no definition of the term „hate speech‟ in the
Convention. There is one definition of „hate speech‟ provided by the Committee of Ministers in its Recommendation on Hate Speech,38 but it is not binding and mostly serves as a
guideline.39 The notion of „hate speech‟ first occurred in Sürek v. Turkey (No. 1), and afterwards it has been repeatedly used in the case-law of the Court.40 The ECtHR refers to
31
ibid [115].
32
T McGonagle „A Survey and Critical Analysis of Council of Europe Strategies for Countering „Hate Speech‟ in Herz M and Molnar P (eds) The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012) 456, 461.
33 Perinçek (n 29), Additional Dissenting Opinion of Judge Silvis, Joined by Judges Casadevall, Berro and Kūris [2]-[7];
Out of the 7 dissenting judges (plus one partly dissenting), four of them held there had been grounds to apply Article 17 of the Convention.
34
Perinçek (n 33) [8].
35
F Tulkens „When to say is to do: Freedom of expression and hate speech in the case-law of the European Court of Human Rights‟ [2012] European Court of Human Rights – European Judicial Training Network Seminar on Human Rights for European Judicial Trainers 1, 2.
36
Perinçek (n 33) [8].
37 Cannie and Voorhoof (n 28) 54; cf s 2.1. 38
Recommendation No. R (97) 20 of the Committee of Minister's to Member States on „hate speech‟ [1997].
39
McGonagle (n 32) 466.
40
12 „hate speech‟ as „all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance)‟.41 The concept is an „autonomous‟ one, and the Court is not bound by the domestic courts' classification of the speech in a certain case.42 Moreover, the Court approaches „hate speech‟ on a case-by-case basis. Beside the content, several other factors need to be regarded when evaluating interference with the freedom of expression. In this regard, the jurisprudence of the Court indicates two different methods. The first one, although not explicitly introduced by the ECtHR, is the „clear and present danger‟ doctrine, which appears to be applied in some cases.43
This doctrine focuses not as much on the wording of the impugned speech itself, but rather on the link between the speech and violence, taking into account „the different elements of the contextual setting in which the speech was uttered.‟44
When the Court employs the test of clear and present danger, it evaluates the real and genuine risk of violence.45 By way of example, in Sürek (No 1) the dissenting judges Palm and Bonello were of the opinion that the Court should attach more importance to the (non-)presence of a real risk of violence. The test aims to delineate when speech that suggests resorting to force and violence does not present an actual danger, and as such should not be excluded from the protection of Article 10 of the ECHR. More precisely, when a call for violence is theoretical one, abstract and removed in time and space from the place of actual or impending violence, freedom of expression should prevail. In order to find the presence of a clear danger, which would justify the restrictions on freedom of expression, „it must be shown either that immediate serious violence was expected or was advocated, or that the past conduct of the applicant furnished reason to believe that his advocacy of violence would produce immediate and grievous action.‟46
The dissenting judges in Féret v. Belgium47 held that only an actual and not a possible impact on the rights of others should produce legal consequences. In their view, fighting mere intolerance is not sufficient to vindicate
encroachment on the freedom of expression.48 Yet, the described approach has not been
41
ECtHR, 4 December 2003, Gündüz v. Turkey [40] (appl. no. 35071/97). 42 A Weber Manual on Hate Speech (Council of Europe 2009) 1, 3. 43
A Buyse „Dangerous Expressions: The ECHR, Violence and Free Speech‟ [2014] 63 ICLQ 491, 498-501; G Bonello „Freedom of Expression and Incitement to Violence‟ in J Casadevall and others (eds) Freedom of Expression: Essays in honour of Nicholas Bratza (Wolf Legal Publishers 2012) 349, 354.
44
Sürek (No 1) (n 11), Partly Dissenting Opinion of Judge Palm 36.
45
The term originally derives from American constitutional jurisprudence, whereas the origin of the „clear and present danger‟ test as we know it today can be found in the Brandenburg doctrine; M Oetheimer 'Protecting Freedom of Expression: The Challenge of Hate Speech in the European Court of Human Rights Case Law' [2009] 17 Cardozo J Int'l & Comp L 427, 441; Bonello (n 43) 351-352.
46
Sürek (No 1) (n 11), Partly Dissenting Opinion of Judge Bonello 38.
47
ECtHR, 16 July 2009, Féret v. Belgium (appl. no. 15615/07).
48
13 generally adopted. Its illusive nature is maybe best demonstrated in divided opinions of the judges in cases where the doctrine was applied.49 The Court favours and mostly utilizes the second approach. It is a highly context-specific approach, where „the interplay between the various factors rather than any one of them taken in isolation that determined the outcome of the case‟50 is addressed. This method does not assess the real and genuine risk of violence. Instead, it puts more emphasis on the content, which needs to be observed in the context in which it was disseminated. As the Court nicely pointed out in Perinçek, the interference needs to be assessed taking into account whether the „statements were made against a tense political or social background‟, in which cases some form of the interference is usually accepted by the Court.51 If the situation is one of conflict and tension, and the words used are „likely to
exacerbate an already explosive situation in that region‟,52
whereas the intention of the person is to condoneresorting to direct or indirect violence,53 the speech will not enjoy protection under Article 10. Yet, even if the words themselves do not call for violence or other criminal acts, they still may constitute incitement to hatred. In Vejdeland the Court found that
„[a]ttacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner‟.54
In the forenamed case the Court was also mindful of the target audience that was subject to the impugned speech.55 Given the circumstances of the case the latter element strikes as being the prevailing one for some judges in finding no violation of Article 10 of the Convention.56 The actual application of the Court‟s highly context-specific approach will be presented in two cases that appeared before it.
49
In ECtHR, 8 June 2010, Gül and Others v. Turkey [42] (appl. no. 4870/02) five votes against two held there was no 'clear and imminent danger which required an interference' with the freedom of expression.
50
Perinçek (n 29) [208].
51
ibid [205].
52
ECtHR, 25 November 1997, Zana v. Turkey, [60] (appl. no. 18954/91).
53
Sürek (No 1) (n 11) [62]. 54
ECtHR, 9 February 2012, Vejdeland and Others v. Sweden, [55] (appl. no. 1813/07); Féret (n 47) [73].
55
Vejdeland (n 54) [56]-[57]; In this case the target audience was a „captive‟ one. „The Court also takes into consideration that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them‟. It also stressed „that the applicants had left the leaflets in or on the pupils‟ lockers, thereby imposing them on the pupils.‟
56
ibid, Concurring Opinion of Judge Spielmann Joined by Judge Nussberger [6]; Concurring Opinion of Judge Boštjan M. Zupančić [1].
14
2.3.1. Facts of the case: Sürek v. Turkey (No 1)
In Sürek (No. 1)57 the applicant was the owner of a newspaper which published two readers‟ letters that condemned the Turkish military‟s oppression of the Kurdish people and their struggle for independence. The applicant was subsequently convicted by the national authorities for disseminating separatist propaganda. The Court reiterated the fundamental principles related to Article 10 of the Convention, in the light of which the necessity of interference needs to be assessed, and stressed that there was little scope for restrictions on political speech under Article 10(2). Furthermore, it once again emphasized wider boundaries with respect to permissible criticism of the government than of private citizens. On the other hand, when remarks amount to incitement to violence against an individual or a public official or a sector, the State is afforded a wider margin of appreciation in its evaluation of the
necessity of interference. The Court held that the aim of the applicant was to stigmatize the Turkish authorities and the words used amounted to a call for bloody revenge. In view of the Court, the content of the impugned speech needs to be observed in the context, and the present one was of conflict and tension. Hence, „[i]n such a context the content of the letters must be seen as capable of inciting to further violence‟.58
When there is a context of conflict and agitation, journalists carry special responsibilities and duties, having in mind that they can easily become the means of the dissemination of „hate speech‟ and violence. „While it is true that the applicant did not personally associate himself with the views contained in the letters, he nevertheless provided their writers with an outlet for stirring up violence and hatred.‟59
The Court established that speech which contains offensive and disturbing information or ideas does not suffice to justify interference with the freedom of speech.60 „What is in issue in the instant case, however, is hate speech and the glorification of violence.‟61
It found that the national authorities had sufficient and relevant reason for interfering with the applicant‟s freedom of expression in the interests of territorial integrity. Consequently, no breach of Article 10 of the Convention was found since in the circumstances of this case the interference was proportionate to the legitimate aim pursued under Article 10(2).62
57 Sürek (No1) (n 11). 58 ibid [62]. 59 ibid [63]. 60 ibid [62]. 61 ibid. 62 ibid [65].
15
2.3.2. Facts of the case: Jersild v. Denmark
Jersild is often seen as a reference point when analyzing „hate speech‟ in the media.63 In
Jersild the medium used for the dissemination of other peoples‟ statements was the television,
a medium which has more immediate and powerful effect than the print media.64 The case concerned a convicted Danish journalist who conducted an interview with the members of the „Greenjackets‟, a group which promoted racist views. Before the interview, the journalist made an introduction in which he explained the context of the interview. The context
concerned a recent public discussion and press comments on racism in Denmark.65 The show was intended for a well-informed audience, and the intention of the applicant was to
counterbalance the racist views of „Greenjackets‟. In this perspective, he included in the interview offensive statements uttered by group members.66 The national courts addressed the impact of „hate speech‟ on a wide circle of people facilitated by the applicant and his editing policy.67 The domestic courts convicted the applicant for spreading racist statements and fined him. When the ECtHR looked at the interference in the light of the case as a whole, it found a violation of the applicant‟s right to freedom of expression. The reasons given by the Court were as follows: „A significant feature of the present case is that the applicant did not make the objectionable statements himself but assisted in their dissemination in his capacity of television journalist‟.68
Another important factor in the Court‟s evaluation was „whether the item in question, when considered as a whole, appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas.‟69
Furthermore, the Court paid attention to the methods of reporting chosen by the media that cannot be restricted in any manner, since that would be deemed as an interference with the right to receive and impart information.70 In this case, the means chosen was an interview, which is considered to be the most important means whereby the press is able to play its vital role of a „public watchdog‟.71 In the light of the foregoing, the Court emphasized the importance of fighting racial
discrimination. Nonetheless, in the current circumstances it found the means employed were
63
McGonagle (n 32) 460.
64
ECtHR, 17 December 2004, Pedersen and Baadsgaard v. Denmark [GC], [79] (app. no. 49017/99).
65 Jersild (n 1) [33]. 66 ibid [28]. 67 ibid [32]. 68 ibid [31]. 69 ibid. 70 ibid. 71 ibid [35].
16 disproportionate to the aim pursued.72 Hence, the applicant‟s right to freedom of expression, as guaranteed by Article 10 of the Convention, was violated.
Section 2.3 has attempted to provide a brief outline of the Court‟s jurisprudence concerning speech categorized as „hate speech‟ and incitement to violence, and on the liability of the press for the dissemination of such speech. As can be seen from this overview, at the core of the Court's analysis is context, both in general terms (e.g. atmosphere in a country) and in more specific terms, i.e. the one provided by the journalist. In Jersild the Court recognized that the journalist presented a special context in which he provided an explanation of the purpose of the interview. Furthermore, unlike in Surek (No. 1), it attached weight to the fact that the journalist did not exercise „hate speech‟ himself. The stance of the Court on these points in Delfi and MTE will be elaborated more closely in Chapter 3.
2.4. Freedom of expression and the Internet
In the words of Barendt, the Internet is „the most important development in communications technology since the printing revolution‟.73
„[T]he Court considers that because of the
particular nature of the Internet, the “duties and responsibilities” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content.‟74 The notion of the „particular nature of the Internet‟ leads us to the following questions. Firstly, what appears to be the specific nature of the Internet? And, secondly, how is that uniqueness reflected in the Court‟s jurisprudence?
With respect to the first question, the Internet is an interactive medium where users have the possibility to communicate and exchange ideas and information, without any prior control, unlike in the traditional media. As follows, the essential difference from the traditional media is enhanced freedom of expression. Additionally, it facilitates access to the material stored, even with the lapse of time between publishing and accessing the information.75 Apart from these features, the Internet also introduced new actors in the field of media. Along those lines, the Council of Europe adopted a Recommendation on a new notion of media76 which suggests that States should adopt a different, broader concept of media. This broader notion of media
72
ibid [30] [37].
73
E Barendt Freedom of Speech (2nd edn Oxford University Press 2005) 1, 451.
74
Delfi (n 6) [113].
75 N Vajić and P Voyatziz „The Internet and freedom of expression: a “brave new world” and the ECtHR‟s evolving
case-law‟ in J Casadevall and others (eds) Freedom of Expression: Essays in honour of Nicholas Bratza (Wolf Legal Publishers 2012) 391, 393-395.
76
17 recognizes new participants in the media ecosystem who have complemented or partly
substituted traditional media actors in their function.77 However, this concept does not imply that all participants who exercise freedom of expression should be considered as media. It is very important to distinguish media from other participants exercising the freedom of speech because media has great importance for a democratic society, and accordingly it enjoys the enhanced protection of the journalistic media under Article 10.78 For this reason, the annex to the Recommendation provides a set of criteria which an actor should fulfil in order to be deemed as media.79 In sum, to benefit from the protection and the status of media, actors – whether new or traditional - should also adhere to a number of related duties and principles.80 It is in this regard that András Koltay upholds the position of David Anderson and Jan Oster, who advocate a functional rather than institutional approach to the concept of media, which also seems to be in line with the Court‟s jurisprudence.81
As to the level of protection and responsibility of media actors, the Recommendation advocates that the states‟ policy
framework should provide a „differentiated and graduated‟ approach to the actors „according to the part that media services play in content production and dissemination processes.‟82 Furthermore, the Recommendation notes that „different levels of editorial control go along with different levels of editorial responsibility.‟83
In relation to the second question, the Court points to the potential of the Internet to affect the rights of others. It finds that „the potential impact of the medium concerned is an important factor‟84
that needs to be regarded. The Internet, with its content and communications, increases the risk of harm posed to the rights of others, especially to the right to respect for private life.85 It enables the persistence of the disclosed information, which may „considerably
77 ibid [6]; „[T]hese include content aggregators ... and users who are also producers of content.‟ 78
B van der Sloot „Welcome to the Jungle: The Liability of Internet Intermediaries for Privacy Violations in Europe‟ [2015] 6 JIPITEC 211, 221.
79
Appendix to Recommendation (n 76); Intent to act as media; Purpose and underlying objectives of media – to produce, aggregate or disseminate media content; Editorial control; Professional standards; Outreach and dissemination; Compliance with public expectations (availability, pluralism and diversity etc).
80 B van der Sloot (n 78) 222. 81
A Koltay „'The concept of media freedom today: new media, new editors and the traditional approach of the law' [2015] 7 Journal of Media Law 36, 46-47; Van der Sloot (n 78), 221; The functional approach implies that the media should fulfil their traditional role of a „public watchdog‟ in a democratic society. Whether a person or a company is an established journalist or medium is not a decisive element for an actor concerned to be deemed as media. Instead, it is the intention to act as media – to contribute to a public debate, comply with the journalistic standards governing the news-gathering and editorial process etc.
82 Recommendation (n 76) [7]. 83 Appendix to Recommendation (n 79) [35]. 84 Perinçek (n 29) [207]; Jersild (n 1) [31]. 85
ECtHR, 5 May 2011, Editorial Board of Pravoye Delo and Shtekel v. Ukraine [63] (appl. no. 33014/05); ECtHR, 10 May 2011, Mosley v. The United Kingdom [130] (appl. no. 48009/08).
18 aggravate the effects of unlawful speech on the Internet compared to traditional media.‟86 Thus, the Internet did provide the platform for exchanging ideas and thoughts, but
simultaneously, due to the nature of the Internet, also became the „powerful means to support racism and xenophobia‟.87
For this reason, the Court encountered the challenge of adjusting the principles applied in the traditional press to the medium of the Internet, taking into account its particular nature.88 In terms of the impact that a certain medium produces, the Court in MTE held the specific style of communication on the Internet has to be taken into account.89 It found that in the case concerned the negative impact of the impugned speech may be mitigated by the fact that the style of a low register is common on numerous Internet portals.90
In the light of all aforementioned, it can be said that the Court recognized the particular nature of the Internet, especially its potential impact on the rights of others. In Delfi and MTE the Court referred to the particular nature of the Internet, 91 but the extent to which this
consideration was indeed taken into account will be examined in the following Chapter.
86
Delfi (n 6) [147].
87
Y Akdeniz Legal Instruments for Combating Racism on the Internet (Council of Europe 2009) 1, 7.
88 N Vajić and P Voyatziz (n 75) 395. 89 cf (n 20). 90 MTE (n 14) [77]. 91 ibid [56] [77]; Delfi (n 6) [113] [133]-[134] [157].
19
Chapter 3.
Liability of Internet news providers for user-generated content
3.1. Facts of the case: Delfi v. Estonia
Delfi is one of the largest Internet news portals in Estonia, publishing on average up to 330 news articles,92 and about 10,000 readers‟ comments daily.93 At the material time, in order to protect others from insulting messages or messages inciting hatred, Delfi set up a notice-and-take-down system. The reader could mark the comment as insulting or as the one inciting hatred, or the victim could notify the applicant company of a defamatory comment, and such comment would be removed instantly by the news portal. Additionally, there was a system which automatically deleted all the comments that featured certain obscene words.94 Also, the „Rules of comment‟ on the news portal‟s site warned users that Delfi does not edit comments. The authors of the comments were responsible for the content of their comments.95 Lastly, the comments were not edited or moderated by Delfi, but were uploaded automatically. The users who wanted to comment on an article were not obliged to write their name or e-mail address, or to register before commenting. Consequently, the majority of the comments were posted under pseudonyms.96
In January 2006 Delfi published a story on ice roads over a frozen sea, and a company which provides a public ferry transport service over it. The member of the supervisory board and the company‟s shareholder was a certain L.97
The article attracted a lot of comments, some of which included personal threats and offensive language against L.98 About 6 weeks after the publication of the article, L.‟s lawyers requested from Delfi to remove the offensive
comments, and sought compensation for non-pecuniary damage. Delfi reacted promptly and removed the offensive comments the same day, but refused to pay the claimed
compensation.99 The Estonian national courts found the pertinent article to be balanced, and a number of the readers‟ comments to be vulgar in form, humiliating, defamatory, and
amounting to simple insults.100 Subsequently, L. was awarded an equivalent of EUR 320.00 92 Delfi (n 6) [11]. 93 ibid [12]. 94 ibid [13]. 95 ibid [14]. 96 ibid [12]. 97 ibid [16]. 98 ibid [17]. 99 ibid [18]-[20]. 100 ibid [27].
20 for the non-pecuniary damage suffered. Delfi lodged an application with the ECtHR as it considered that his freedom of expression had been violated.
In the end, the Grand Chamber confirmed the judgment of the Chamber.101 There was no question that the applicant‟s right to freedom of expression was interfered with. Also, it was not disputed that the interference pursued a legitimate aim of protecting the reputation and rights of others.102 The lawfulness and the proportionality of the interference were
contentious. As to the lawfulness, the applicant argued that the interference with his freedom of expression was not „prescribed by law‟ since the Estonian domestic law did not make it foreseeable for a media publisher that it could be held liable for unlawful statements of third parties.103 However, the Court considered that the provisions of law applied by the domestic courts made it foreseeable that an applicant, as a media publisher, may be held liable for unlawful third-party comments on its portal.104 As to the proportionality of the interference, the Court has taken into account the following elements: the context of the comments, the measures taken by the applicant company, the liability of the actual authors, and the
consequences of the domestic proceedings for the applicant company.105 As a result, the Court decided as follows: in connection to the context of the comments, the Court attached
„particular weight...to the nature of the Delfi news portal. It ... was a professionally managed Internet news portal run on a commercial basis. ... [that] had integrated the comment
environment into its news portal‟.106 In addition, the portal was the only one who had control over the posted comments of the user. Accordingly, the portal should be seen as a publisher of the users‟ comments.107
Concerning the measures taken by the applicant, the Court found that the applicant had not provided sufficient protection for the rights of others. With regard to the applicant‟s notice-and-take-down system, it found as follows: „If accompanied by effective procedures allowing for rapid response, this system can in the Court‟s view function in many
101
ibid [64]-[65] [114]-[115]; The Grand Chamber confirmed the judgment of a Chamber, but not unanimously, and with a change of speech qualification from defamatory speech to „hate speech‟ and incitement to violence.
102
Delfi (n 6) [130].
103 ibid [62] [120]-[129]; cf s 2.1; Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on
certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce or e-Commerce Directive) [2000] OJ L 178; In particular, Delfi held that the domestic law transposing the e-Commerce Directive should have been applied. The e-Commerce Directive, among other legal issues, regulates the limitation of Internet intermediaries‟ liability under European law. Delfi argued that aforementioned legislation prohibited the liability of Internet intermediaries for third-party content, and there was no domestic law under which an intermediary was to be seen as a professional publisher of third-party comments. The domestic courts found that the applicant‟s activities did not fall within the scope of the forenamed legislation.
104 Delfi (n 6) [128]. 105 ibid [64] [142]. 106 ibid [144]. 107 ibid [112]-[113] [126].
21 cases as an appropriate tool for balancing the rights and interests of all those involved.‟108 However, clearly unlawful comments should have been removed without delay following the publication, even without the notice from third parties or the alleged victim.109 In addition, the applicant‟s word-based filtering system was not sufficiently effective since it had failed to filter out „hate speech‟ and speech inciting violence.110
As to the liability of the authors of the comments, there had been high probability that the victim would not be able to identify the author of the hatred comments. Withal, the applicant failed to provide the instruments
allowing the identification of the author.111 Therefore, under the circumstances of the present case, seeking redress in defamation proceedings from the media company cannot be deemed as a disproportionate interference with the applicant‟s right to freedom of expression.112
The interference was also not disproportionate having in mind the consequences for the applicant company. The compensation for non-pecuniary damage in the amount equivalent to EUR 320.00 was not a large sum for one of the largest Internet new portals in
Estonia.113Altogether, no violation of Article 10 of the ECHR was found.114
3.2. Facts of the case: Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v.
Hungary
In February 2010 MTE, a self-regulatory body of Hungarian Internet content providers, and Index.hu (hereinafter: Index), a company who owns one of the major Internet news portals in Hungary, publicized a story about a company that owned two real estate websites. The articles disclosed the plaintiff‟s commercial conduct, which had been seen as misleading and
damaging to their clients. Both portals enabled users, upon registration, to comment on the articles published on their sites. They also had a disclaimer contained in their General Terms and conditions stating that the writers of comments were liable for the comments themselves. Both applicants set up a notice-and-take-down system, and the second applicant also
performed partial follow-up moderation of the posted comments.115 The articles attracted comments, some of which were labelled by the Hungarian courts as „offensive, insulting and humiliating‟, and „beyond the acceptable limits of freedom of expression.‟116
Notwithstanding 108 ibid [159]. 109 ibid [153] [159]. 110 ibid [156]. 111 ibid [151]. 112 ibid. 113 ibid [160]. 114 ibid [162]. 115 MTE (n 14) [6]-[8]. 116 ibid [17].
22 the nature of the comments the plaintiff had never requested the applicants to remove the comments. The applicants removed the unlawful comments on their own initiative after they learnt of the pending court action.117 The domestic courts imposed strict liability118 on the portals for any harmful or unlawful comment made by a user. The conclusion was reached on the account of both portals enabling the users to comment.119 The applicants lodged an application with the ECtHR.
As in Delfi, there was no dispute between the parties about the existence of interference with the applicants‟ right to freedom of expression.120
The presence of a legitimate aim pursued was also not disputable,121 while the lawfulness122 and the proportionality of the
interference123 were contentious. Like in Delfi, the applicants contended that the interference with their right to freedom of expression was not „prescribed by law‟ since the provisions of the e-Commerce Directive were not correctly interpreted and applied. The conclusion of the Court on that point was also the same as in Delfi.124 To assess whether the interference with the applicants‟ freedom of expression was proportionate and in accordance with the
Convention, the ECtHR used the criteria identified in Delfi.125 The explanation regarding the context and the content of the impugned comments was somewhat different in comparison to
Delfi. To be more precise, the impugned comments did not constitute clearly unlawful
speech,126 and the offensive speech could be „considered as an ill-considered reaction‟ in the context of a dispute over unethical behaviour of the plaintiff.127 Unlike in Delfi, in this case the specific style of the communication on certain Internet portals was taken into account. The ECtHR considered that „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 expressions.‟128
In terms of the context, the Court also recognized the fact that only the first applicant was a media publisher run for an economic purpose, while the second applicant was of a non-commercial nature.
117
ibid [15] [18].
118 Strict liability implies the mere existence of „hate speech‟. No actual knowledge on the part of Internet intermediaries is
required. 119 MTE (n 14) [22]. 120 ibid [45]. 121 ibid [52]. 122 ibid [47]. 123 ibid [53]. 124
ibid [46]-[51]; cf mutatis mutandis text to (n 103).
125 ibid [69]-[70]; Delfi (n 6) [142]-[143]. 126 MTE (n 14) [64]. 127 ibid [75]. 128 ibid [77].
23 Nevertheless, it did not address the possible consequences of that distinction and, in
comparison to Delfi, the (non-)commercial nature of the applicant did not carry „particular weight‟ in this case.129
As to the potential liability of the authors of the comments, the Court restated its established case-law. It held that the applicants should not be punished for providing a platform for third parties to disseminate their opinions on matters of public interest, unless there are particularly strong reasons for doing so.130 With respect to the measures taken by the applicants, the Court observed that the applicants had adopted
measures to prevent the publication of defamatory comments or to remove them.131 Bearing in mind the speech was insulting and offensive, but did not amount to „hate speech‟, the Court did not find any reason why the notice-and-take-down system „could not have provided a viable avenue to protect the commercial reputation of the plaintiff.‟132 When assessing the consequences for the applicants, the Court indicated as a decisive question „the manner in which Internet portals...can be held liable for third-party comments. Such liability may have foreseeable negative consequences on the comment environment of an Internet portal. ... [That] may have, directly or indirectly, a chilling effect on the freedom of expression on the Internet.‟133
In the light of all aforementioned considerations, the Court held that the applicants‟ right to freedom of expression was violated.134
Overall, the Court has identified the relevant criteria for analysis, but when the two cases are compared different weight is given to the factors considered. While the similarities of the facts in the cases concerned were disregarded or dismissed as insignificant, the Court focused on one fact, which in its view considerably distinguished those two cases.135 That fact is the presence of „hate speech‟ in Delfi. The sanctioned liability of Internet intermediaries for user-generated content containing „hate speech‟ implies the following: firstly, Internet news portals should pre-monitor all user-generated content in order to expeditiously remove „clearly
unlawful‟ comments;136
and secondly, in order to identify such comments, they should have
129 ibid [73]; compare Delfi (n 6) [144]. 130 MTE (n 14) [79]. 131 ibid [81]. 132 ibid [91]; cf (n 108). 133 MTE (n 14) [86]. 134 ibid [91]. 135
C Angelopoulos „MTE v Hungary: New ECtHR Judgment on Intermediary Liability and Freedom of Expression‟, Kluwer Copyright Blog, 5 March 2016,<http://kluwercopyrightblog.com/2016/03/05/mte-v-hungary-new-ecthr-judgment-on-intermediary-liability-and-freedom-of-expression/> (26 November 2016).
136
D Voorhoof and E Lievens „Offensive Online Comments – New ECtHR Judgment‟, ECHR Blog, 15 February 2016 <http://echrblog.blogspot.nl/2016/02/offensive-online-comments-new-ecthr.html> (28 November 2016); L Woods „Freedom of expression and liability for Internet comments: a key new ECHR judgment‟, EU Law Analysis, 21
24 unambiguous hate-speech guidelines. The following analysis will reflect on the aforesaid findings.
3.3. Sanctioned liability in Delfi and MTE v. the liability of traditional press under Article 10 of the ECHR
According to the Grand Chamber, the impugned comments in Delfi were tantamount to „hate speech‟ and a direct threat to the physical integrity of individuals.137
There was no need for any further legal analysis in order to establish the unlawful nature of the comments since they were „on their face manifestly unlawful‟.138
However, it should be noted that the ECtHR changed its qualification of the speech from defamatory and insulting to „hate speech‟ and incitement to violence in the procedure before the Grand Chamber.139 That being so, if the comments concerned were indeed „on their face manifestly unlawful‟, how come there was such a substantial difference between the national courts‟ qualification of the speech and the one by the ECtHR?140 Or, for that matter, between the Chamber‟s and the Grand Chamber‟s qualification? In MTE, the Court re-qualified the nature of the contested comments as well, but this time in a different direction. While the national Hungarian courts designated the comments as „offensive, insulting and humiliating‟ and „beyond the acceptable limits of freedom of expression‟, the Court saw them as offensive and vulgar, but not illegal.141
It should be borne in mind that judges Sajó and Tsotsoria in Gül and Others argued that the „impact of such statements is contextual and the domestic courts are in a better situation to evaluate them in the given circumstances.‟142
In sum, if „hate speech‟ is to be a turning point in establishing the liability of Internet news providers for third-party content, the Court should provide a more detailed analysis concerning the features of the speech that is deemed as „manifestly unlawful‟.
But, even if the words impugned could have been identified as „clearly unlawful‟, what makes the interference in the dissemination of speech (un)justified is not only the content, but also the context in which the content was disseminated. However, the Court in Delfi did not assess
February 2016 <http://eulawanalysis.blogspot.hr/2016/02/freedom-of-expression-and-liability-for.html> (29 November 2016). 137 ibid; Delfi (n 6) [159]. 138 Delfi (n 6) [117]. 139 text to (n 101). 140 Angelopoulos (n 135); cf (n 100). 141 MTE (n 14) [17] [64]. 142
25 the elements usually examined when „hate speech‟ is involved.143 Firstly, it did not evaluate the overall background against which the readers‟ opinions were made.144
In other words, was „hate speech‟ disseminated in the context of conflict and tension, and therefore capable of escalating the already present violence?145 Or, was it spread in an atmosphere of relative calm,146 like in Delfi and MTE? There was no already present violence that readers‟ comments could have escalated, and the target audience was neither „captive‟ nor forced to be subjected to the illegal comments.147 Even if we apply the alternative approach, the clear and present danger test,148 it is somewhat hard to imagine that a threat to death spoken on the Internet would have the same impact as in a face-to-face encounter.149 Secondly, it did not attach any importance to the fact that the particular context was provided by the news portal in a well-balanced article, in which the readers‟ opinions should have been observed.150
The debate regarded a matter of general interest, and was related to the „controversial behaviour of a large corporation.‟151
It is difficult to understand why in MTE the words used by the readers can be seen as a consequence of personal frustration influenced by the plaintiff‟s misbehaviour and within the context of a public debate which contains more robust speech, whereas in Delfi it cannot.152 In addition, the Court seems to acknowledge the particular style of communication on the Internet in MTE, which is „a consideration that reduces the impact that can be attributed to those expressions.‟153
Still, for some reason, the Court was not mindful of the
communication style on the Internet in Delfi. It remains unclear why in one case the Court appreciates the style of expression pertaining to the Internet and disregards it in the other.In the same manner the Court quoted Jersild in both cases, but with different considerations. In
MTE it found that „punishment of a journalist for assisting in the dissemination of statements
made by another person ... 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‟.154 In Delfi, it nominally referred to the said principle, but did not
143 cf s 2.3.
144
ECtHR, 20 May 1999, Bladet Tromsø and Stensaas v. Norway [62] (appl. no.21980/93).
145 cf sub-s 2.3.1. 146 cf sub-s 2.3.2. 147 text to (n 55). 148 cf s 2.3. 149 Delfi (n 8) [14]. 150 compare Jersild (n 1) [33]. 151 Delfi (n 8) [39]. 152 cf (n 127); ibid. 153 MTE (n 128). 154 ibid [79].
26 discuss it.155 Lastly, not only did the Delfi news portal not exercise the impugned speech itself, but it also dissociated from the users comments.156 The same fact that was designated as a „significant feature‟ in Jersild,157
carried no weight in the present case.
In terms of the context which the ECtHR did address in Delfi, two factors were indicated as decisive in identifying the Internet news portals as publishers of the disputable comments. The first one was the commercial nature of the Delfi news portal, and its „economic interest in the posting of comments.‟158
And, the second one was the possibility of editing users‟
comments.159 In relation to the first consideration, whether the aim pursued is to make a profit or not should make no difference.160 What is more, when the sphere concerned is not „purely commercial‟ and the statements form a part of a debate affecting the general interest, the speech is afforded a higher level of protection. Thus, the dissenting judges Sajó and Tsotsoria find that the enhanced responsibility of the press based on the presence of a profit-making sits uneasily with the Court‟s jurisprudence.161
In addition, the news portal‟s commercial nature carries special significance in Delfi, but the Court pays no attention to the same fact in MTE, where the second applicant was also a commercial Internet news portal. With reference to the actual possibility of editing the users‟ comments, the dissenting judges Sajó and Tsotsoria argued that the possibility of editing the users‟ comments does not equalize Internet news portals with traditional publishers. Due to the interactivity of the Internet medium the nature of editing is completely different in the traditional press than on Internet news portals.162 A traditional publisher knows in advance the content that is going to be published, but the same cannot be said for Internet news portals. The only prior control the latter have is limited to the extent of a filtering mechanism, and the editing of the content published is only possible by removing or blocking comments. But, there is no actual personal control over the subject who posts the comment.163 This line of reasoning seems to be in conformity with the
„differentiated and graduated‟ approach advocated by the Recommendation on a new notion of media.164 In the same vein Koltay notes that „editorial responsibility‟ is indeed a ground for an actor to be considered as a subject of media freedom. Nonetheless, Internet intermediaries 155 Delfi (n 8) [39]. 156 cf (n 95). 157 cf (n 68). 158 Delfi (n 6) [144]-[146]. 159 ibid. 160 cf s 2.1. 161 Delfi (n 8) [28]. 162 ibid [30]. 163 ibid [31]. 164 cf (n 83).
27 do not produce the content themselves, but enable the transmission of third-party content to the audience. Since they can influence the scope of transmitted content, their activity can qualify as a sort of „editing‟. However, applying the same legal criteria as to the traditional media would not be justified.165
In the end, the article produced by the journalist, and the comments generated by the users as a response to the article concerned, cannot be regarded the same. This is not only for the reasons described in the preceding paragraph. Lisl Brunner rightly points out that those two have different natures and functions. While the journalists have the duty and responsibility to impart ideas and information in good faith and to fulfil the role of a „public watchdog‟, users comments are not seen as a credible source, particularly if they are anonymous. They should be observed in the context of the present time, where many of the discussions that usually take place on the streets or other environment are taken into an online setting. That is a
consequence of faster, facilitated access to public discussions provided by the medium such as the Internet.166 This line of argument seems to follow the „differentiated and graduated‟ approach from the Recommendation on a new notion of media, which indicates the criteria that should be fulfilled in order for an actor who exercises the right to speech to be considered as media.167 In the words of judge Albuquerque, maybe „[t]he formal characterisation of a place as a public forum in view of its principal function does not per se resolve the matter, but it is certainly a valuable element, among others, to ascertain the prevailing right, freedom or interest.‟168
3.4. Concluding remarks
The foregoing analysis tried to reveal some of the inconsistency of the assessment carried out by the Court in Delfi and MTE, especially when compared to the Court‟s jurisprudence on Article 10 of the ECHR. But, even more it sought to show the ambiguity of the „hate speech‟ concept, and the complexity of analysis required to establish the liability of the press for third-party statements.169 It is not just a matter of content or one element observed in isolation.
165
Koltay (n 81) 51-52; cf (n 82) (n 83).
166
L Brunner „The Liability of an Online Intermediary for Third Party Content: The Watchdog Becomes the Monitor: Intermediary Liability after Delfi v Estonia‟ [2016] 16 Human Rights Law Review 163, 171.
167 cf (n 79). 168
ECtHR, 13 July 2012, Mouvement Raëlien Suisse v. Switzerland [GC] (appl. no. 16354/06), Dissenting Opinion of Judge Pinto de Albuquerque 51.
169
28 Rather, it is the interaction of various intertwined elements.170 Therefore, „the answer has to be established by means of a proper judicial process.‟171
Even the Court has difficulties and dissenting opinions about the matter, which leads us to the following question: if qualified professionals have a hard time identifying whether contested speech is „clearly unlawful‟ or „lawful‟, how exactly should the persons who are not as qualified should perform that task?172 Along the same lines Tarlach McGonagle argues that if a certain category of speech is to be excluded from the protection of Article 10, it is of the greatest importance to provide clear guidance as to what that category/concept actually encompasses.173 One of the contentions of the Court was that the automatic word-based filter in Delfi was inadequate, since it did not identify the „comments whose content did not
constitute protected speech under Article 10‟.174
In the light of the foregoing, what would be a sufficiently adequate system? In addition, every culture has a partially different perception of what constitutes intolerable speech in a particular contextual setting. No one underestimates the challenge of combating „hate speech‟ in today‟s world, especially online. Yet, is the pre-monitoring and filtering of all user-generated content by untrained subjects with the purpose of disqualifying „clearly unlawful‟ speech without delay and notice a proper solution? This matter will be scrutinized in the following chapter.
As to the position of the particular nature of the Internet in the Court‟s analysis, it could be said that even though the Court nominally referred to the „differentiated and graduated approach‟,175
it did not actually apply it. Or, more accurately, it focused rather on the duties and responsibilities of Internet news portals for third-party content,176 but paid no heed to the rights of the press in a manner which would acknowledge the specifics of the Internet.177
170 Perinçek (n 29) [208]. 171 Delfi (n 8) [14]. 172
Voorhoof and Lievens (n 136).
173 McGonagle (n 32) 464. 174 Delfi (n 6) [156]. 175 cf s 2.4; ibid[113]. 176 Woods (n 136). 177 Delfi (n 8) [27].
29
Chapter 4.
Consequences of the sanctioned liability of Internet news providers for third-party content
4.1. Potential impact on the freedom of expression of Internet users
Considering the circumstances of MTE the domestic courts held that the applicants should have expected that readers‟ comments might breach the law since the applicants allowed unfiltered comments. Consequently, by publishing speech whose content went beyond the scope of Article 10 of the ECHR, the applicants assumed objective liability for such content.178 However, the ECtHR found that, unlike in Delfi, the statements in question although vulgar and offensive did not amount to „hate speech‟ or incitement to violence. Thus, any filtering of all users‟ comments in order to remove unlawful content would „amount to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet.‟179 Whereas „hate speech‟ requires monitoring of all users‟ comments, so that it can be removed without delay after publishing and even
without notice, in case of merely unlawful speech such a requirement is deemed as capable of undermining the freedom of expression. Yet, how should Internet news providers detect and remove „hate speech‟ if not by pre-monitoring or filtering all user-generated content in order to gain actual knowledge of it?180 And, is not pre-monitoring or filtering of all user-generated content precisely what is to be considered as incompatible with the freedom of expression, as it undermines the freedom to impart information on the Internet?181
One of the major concerns in this matter is imposing such an obligation on Internet news providers, which do not have sufficient legal knowledge to assess the legality of third-party content. To avoid any potential liability for user-generated content that may be later
considered illegal by the courts, there is a possibility of removing or over-blocking content which may in factbe entirely legitimate. This scenario is likely to happen having in mind the requirement of removing „clearly unlawful‟ content without any delay and notice after posting by third parties. Therefore, this kind of prerequisite excludes „possibly burdensome and
178 MTE (n 14) [15]-[25]. 179 ibid [82]. 180 Delfi (n 8) [35]. 181
30 lengthy balancing of rights that require protection‟, and could easily lead to private
censorship, as well as to potential abuse by business competitors or political adversaries.182 In MTE the Court addressed the potentially negative impact of Internet news providers‟ objective liability. It did not sanction such liability to prevent a chilling effect on the freedom of expression.183 Still, the judgment in MTE did not actually change the implications of the Court‟s ruling in Delfi since it does not preclude aforesaid chilling effect. The mere possibility of Internet news portal‟s liability for „clearly unlawful speech‟ of others, if not removed without delay and notice, leads not only to the risk of overbroad deletion of possibly legal content, it also creates a risk of closing the comment areas altogether.184 As follows, the vagueness of the „hate speech‟ concept,185
requirement on insufficiently competent private entities to pre-monitor or filter all user-generated content and consequently remove some of the content by their arbitrary appraisal, as well as the lack of procedural guarantees, indeed create a clear and present danger for disproportionate interference with the freedom of expression of Internet users.186
4.2. Consequences for the practice of Internet news providers
The pre-monitoring of all user-generated content is also connected to practical and economic issues. Delfi as an established news portal received up to 10,000 readers‟ comments daily. Pre-monitoring of all user generated content required an establishment of a team of moderators. Delfi employed such a team after it was held liable for users‟ defamatory
comments by the domestic courts. The team reviewed all user notices of improper comments, and the compliance of the comments with the rules of commenting. The monthly percentage of the defamatory comments was less than 0,5 % given the sum of all received comments.187 Still, the ECtHR found that employment of a team of moderators had not influenced the applicant‟s business model.188
In spite of that view, it is not difficult to envisage that the engagement of such a team did require certain economic funds. Delfi, as one of the largest Internet news portals in Estonia, could afford that, but what about smaller Internet news providers which do not have that luxury? If they cannot set up a team of moderators who will
182
A Kuczerawy 'Intermediary liability & freedom of expression: Recent developments in the EU notice & action initiative' [2015] 31 Computer Law & Security Review 46, 48-49.
183
MTE (n 14) [86] [88].
184
Voorhoof and Lievens (n 136); Delfi (n 8) [8].
185 cf s 3.4. 186
Voorhoof and Lievens (n 136).
187
Delfi (n 6) [32].
188
