European Court of Human Rights revisits intermediary liability

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The European Court of Human Rights (ECtHR) has revisited the issue of liability for Internet intermediaries in the case of Magyar Tartalomszolgáltatók Egyesülete and Index.Hu v Hungary. This is the second time in less than a year that the ECHR deals with this issue, as it had already produced a controversial decision in the case of Delfi v Estonia, where the court had ruled against news intermediaries and declared them liable for abusive comments posted by users. I have to say that I was rather apprehensive about the Magyar case, but I’m glad to report that the ECHR has produced a more nuanced decision that fits better with existing practice and law.

The applicants are the Hungarian association of Internet service providers (Magyar T.E.), which monitors content on behalf of its members, and Index.hu, one of the largest news portals in Hungary; the respondent is the Hungarian state. Back in February 2010, Magyar T.E. posted an article highlighting unethical business practices by a real estate company, which prompted negative comments towards the firm, some confirming the unethical behaviour. A couple of other websites, including Index.hu, reproduced the articles. An anonymous user in Index posted the following comment:

“People like this should go and shit a hedgehog and spend all their money on their mothers’ tombs until they drop dead.”

I personally find the imagery quite evocative, but I’m sure it sounds more poetic in Hungarian.

The real estate company objected to these comments, and shortly after it brought a civil action against the websites claiming that the “content was false and offensive, and the subsequent comments had infringed its right to good reputation.” The websites responded by immediately removing the comments, but the civil action continued. The lower court sided with the claimants with regards to the comments, and ruled that the company’s reputation had been damaged because these expressions were “offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression”. However, the court ruled that the news content itself was fine. Both parties appealed, and the Budapest Court of Appeal upheld the first decision with a baffling modified reasoning; it declared that the E-Commerce Directive did not apply to this case because the comments did not involve a commercial transaction, thus completely missing the point of the Directive. The decision was then appealed all the way to the Hungarian Constitutional Court, which in a seriously damaging decision declared that the fact that there were anonymous comments online meant that the news portals were liable for everything posted. In a situation similar to that found on Delfi, Magyar T.E. and Index.hu decided to make their application to the ECtHR arguing that the decisions by the Hungarian courts infringed the right of freedom of expression protected in Article 10 of the European Convention on Human Rights.

After Delfi, many suspected that we were in for another disappointing decision, but thankfully the ECtHR has pleasantly surprised us. One of the most prevalent principles when it comes to the liability of service providers for content uploaded by their users has been to maintain a system of notice-and-take-down, whereby intermediaries will remove content after offended parties have notified them that it might be defamatory/infringing/illegal, and in return the ISP will receive a limited immunity from liability. In Delfi, the ECtHR decided that a news portal had not taken the content promptly enough, and that the nature of the comments was excessive, and therefore the intermediaries were liable.

In this case, the ECtHR has decided to side with the intermediaries, as it considered that the actions of the Hungarian courts amounted to a violation of freedom of speech. A big part of this apparent change of heart has come because the ECtHR acknowledged the principles of intermediary liability contained in the notice-and-take-down regime. They comment:

“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. The Court sees no reason to hold that such a system could not have provided a viable avenue to protect the commercial reputation of the plaintiff.”

The Court then goes to make a clear distinction between the types of comments involved in both cases. They said that the user comments in Delfi were excessive, as they took the form of “hate speech and direct threats to the physical integrity of individuals“. But the comments in Magyar T.E. were not excessive, they were at most “vulgar and offensive“, as Judge Kūris puts it in his concurring opinion. The Court then is saying that removing vulgar and offensive comments violates freedom of speech, but removing hateful speech does not. While I do not completely agree with this, at least we get a much more rational line.

So what is going on? I agree with the opinion that the ECtHR is re-writing Delfi. I have the theory that maybe the ECtHR was surprised by the very negative response that Delfi received. Many of us felt that Delfi is what happens when mainstream lawyers look at Internet regulation subjects for the first time, often ignorant of the long history of cases and debates surrounding a subject. To many of us, Delfi was a throwback, a return to the crazy rulings of the 90s in a time before safe harbors and take-down notices. In Delfi, the ECtHR practically shouts to national courts to hold intermediaries accountable for abusive comments. The rest of us had moved on from those positions, but then the Human Rights court discovered the negative consequences of holding intermediaries liable, as it stifles genuine debate. In MTE v Hungary, the ECtHR has drawn a line that is more akin to common practice.

However, the battle is not  over. Judge Kūris warns that MTE should not be taken by intermediaries as a free pass:

Consequently, this judgment should in no way be employed by Internet providers, in particular those who benefit financially from the dissemination of comments, whatever their contents, to shield themselves from their own liability, alternative or complementary to that of those persons who post degrading comments, for failing to take appropriate measures against these envenoming statements. If it is nevertheless used for that purpose, this judgment could become an instrument for (again!) whitewashing the Internet business model, aimed at profit at any cost.”

Somehow, I do not think we have seen the last of this debate.

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