MAGYAR TARTALOMSZOLGALTATOK EGYESULETE AND INDEX.HU ZRT v. HUNGARY - 22947/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 135 (02 February 2016)

In the case of Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Vincent A. De Gaetano, President,
          András Sajó,
          Boštjan M. Zupančič,
          Nona Tsotsoria,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 5 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 22947/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two legal entities registered under Hungarian law, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (“the applicants”), on 28 March 2013 respectively.

2. The applicants were represented by Mr L. Bodolai, a lawyer practising in Budaörs. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.

3. The applicants complained under Article 10 of the Convention that, by effectively requiring them to moderate the contents of comments made by readers on their websites, the domestic courts unduly restricted their freedom of expression and thus the liberty of internet commenting.

4. On 22 January 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant, Magyar Tartalomszolgáltatók Egyesülete (“MTE”) is an association seated in Budapest. It 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.hu Zrt (“Index”) is a company limited by shares, seated in Budapest. It is the owner of one of the major Internet news portals in Hungary.

6. At the material time both applicants allowed users to comment on the publications appearing on their portals. Comments could be uploaded following registration and were not previously edited or moderated by the applicants.

7. The applicants advised their readers, in the form of disclaimers, that the comments did not reflect the portals’ own opinion and that the authors of comments were responsible for their contents.

8. Both applicants put in place a system of notice-and-take-down, namely, any reader could notify the service provider of any comment of concern and request its deletion. In addition, in the case of Index, comments were partially moderated, and removed, if necessary.

9. Both portals stated that comments infringing the personality rights of others could not be uploaded on the websites.

10. Index’s “Principles of moderation” contained the following:

“I. Deletion of comments

1.1. Especially forbidden are:

1. comments that, at the time of their posting, infringe the laws of Hungary, indicate or incite to crime or any other unlawful act...

3. vulgar, aggressive, threatening comments. What is vulgar, aggressive or threatening has to be decided by the moderators, in the light of the given topic...”

11. 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. According to the opinion, the two websites provided thirty-day long advertising service for their users free of charge. Following the expiry of the thirty-day free period, the service became subject to a fee; and this without prior notification of the users. This was possible because, by registering on the website, the users accepted the terms and conditions stipulating that they could be changed unilaterally by the service provider. The opinion also noted that the service provider removed any obsolete advertisements and personal data from the websites only if any overdue charges were paid. The opinion concluded that the conduct of the service provider was unethical and misleading.

12. The opinion attracted some comments of users, acting under pseudonyms, amongst which there were the following:

“They have talked about these two rubbish real estate websites (“két szemét ingatlanos oldalról”) a thousand times already.”

“Is this not that Benkő-Sándor-sort-of sly, rubbish, mug company (“benkősándoros sunyi szemét lehúzó cég”) again? I ran into it two years ago, since then they have kept sending me emails about my overdue debts and this and that. I am above 100,000 [Hungarian forints] now. I have not paid and I am not going to. That’s it.”

13. On 8 February 2010 the Internet portal www.vg.hu, operated by Zöld Újság Zrt, reproduced the opinion word by word under the title “Another mug scandal”.

14. The consumer protection column of Index also wrote about the opinion under the title “Content providers condemn [one of the incriminated property websites]”, publishing the full text of the opinion. One of the user comments posted on Index by a reader acting under a pseudonym read as follows:

“People like this should go and shit a hedgehog and spend all their money on their mothers’ tombs until they drop dead.” (“Azért az ilyenek szarjanak sünt és költsék az összes bevételüket anyjuk sírjára, amíg meg nem dögölnek.”)

15. On 17 February 2010 the company operating the websites concerned brought a civil action before the Budapest Regional Court against the applicants and Zöld Újság Zrt. The plaintiff claimed that the opinion, whose content was false and offensive, and the subsequent comments had infringed its right to good reputation.

Once learning of the impending court action, the applicants removed the impugned comments at once.

16. In their counterclaims before the Regional Court, the applicants argued that they, as intermediary publishers under Act no. CVIII of 2001, were not liable for the user comments. They noted that the business practice of the plaintiff, affecting wide ranges of consumers, attracted numerous complaints to the consumer protection organs and prompted several procedures against the company.

17. On 31 March 2011 the Regional Court partially sustained the claim, holding that the plaintiff’s right to good reputation had been infringed. As a preliminary remark, the court observed that consumer protection bodies had instituted various proceedings against the plaintiff company, since it had not informed its clients adequately about its business policies.

The Court found that the comments (see paragraphs 12 and 14 above) were offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression. The court rejected the applicants’ argument that they were only intermediaries and their sole obligation was to remove certain contents, in case of a complaint. It found that the comments constituted edited content, fell in the same category as readers’ letters and the respondents were liable for enabling their publication, notwithstanding the fact that later on they had removed them.

As regards the content of the opinion as such, the court found that it had contributed to an on-going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism.

18. Both parties appealed. In their appeal the applicants argued that the plaintiff had not requested them to remove the offensive comments. Nonetheless, they had done so as soon as soon as they had been informed of the plaintiff’s action. They also argued that users’ comments were to be distinguished from readers’ letters, since these latter were only published on the basis of editorial decisions, whereas comments did not constitute edited content. They argued that, in respect of comments, they had only acted as service providers of information storage.

19. On 27 October 2011 the Budapest Court of Appeal upheld in essence the first-instance decision but amended its reasoning. It ordered each applicant to pay 5,000 Hungarian forints (HUF) as first-instance and HUF 36,000 as second-instance procedural fee.

20. The Court of Appeal held that - as opposed to readers’ letters whose publication was dependent on editorial decisions - the comments, unedited, reflected the opinions of the sole commenters. Notwithstanding that, the owner of the website concerned was liable for them. According to the court’s reasoning, Act no. CVIII of 2001, transposing Directive 2000/31/EC on Electronic Commerce into Hungarian law, did not apply to the applicants’ case since it only related to electronic services of commercial nature, in particular to purchases through the Internet. Under section 2(3) of the Act, electronic commercial services were information society-related services whose purpose was the sale, purchase or exchange of a tangible and moveable property, which was not the situation in the applicants’ case. In any event, pursuant to its section 1(4), the scope of the Act did not extend to expressions made by persons acting outside the sphere of economic or professional activities or public duties, even if uttered in connection with a purchase through the Internet. For the Court of Appeal, the comments were private utterances which did not fall under Act no. CVIII of 2001 on Electronic Commercial Services. Thus, there was no reason to assess the meaning of the terms of ‘hosting service providers’ and ‘intermediaries’ under that Act. Nonetheless, the comments attracted the applicability of the Civil Code rules on personality rights, notably Article 78. Since the comments were injurious for the plaintiff, the applicants bore objective liability for their publication, irrespectively of the subsequent removal, which was only relevant for the assessment of any compensation.

21. The applicants lodged a petition for review with the Kúria. They argued that, in their interpretation of the relevant law, they were under no obligation to monitor or edit the comments uploaded by readers on their websites.

22. On 13 June 2012 the Kúria upheld the previous judgments. It stressed that the applicants, by enabling readers to make comments on their websites, had assumed objective liability for any injurious or unlawful comments made by those readers. It rejected the applicants’ argument that they were only intermediary providers which allowed them to escape any liability for the contents of comments, other than removing them if injurious to a third party. The Kúria held that the applicants were not intermediaries in terms of section 2(lc) of Act no. CVIII and they could not invoke the limited liability of hosting service providers. It shared the Court of Appeal’s view in finding that the comments were capable of harming the plaintiff’s good reputation and that the applicants’ liability consisted of their having allowed their publication.

The Kúria imposed HUF 75,000 on each applicant as review costs, including the costs of the plaintiff’s legal representation.

This decision was served on 2 October 2012.

23. The applicants introduced a constitutional complaint on 3 January 2013, arguing in essence that the courts’ rulings holding them responsible for the contents of the comments amounted to an unjustified restriction on their freedom of expression.

24. On 11 March 2013 the Constitutional Court declared the complaint admissible.

25. On 27 May 2014 the Constitutional Court dismissed the constitutional complaint, (decision no. 19/2014. (V.30.) AB). In the analysis of the proportionality of the interference, the Constitutional Court explained the absence of unconstitutionality in the case as follows.

“[43] In the case concerned by the Kúria’s judgment, the operator of the webpage did not moderate the comments. The identities of those primarily responsible, unless figuring nominatively, are unknown; and for that reason, the liability lies with the operator of the webpage.

[44] In the present case, the aggrieved fundamental right is not the right to freedom of expression as such, but one of its particular elements, the right to freedom of the press.

[50] It is without doubt that blogs and comments constitute expressions and as such attract the protection of Chapter IX of the Fundamental Law.

[59] The liability incumbent on the operator of the webpage obviously restricts freedom of the press - which includes, without doubt, communication on the Internet.

[63] The legislation pursues a constitutionally justified aim. It is also suitable for that purpose in that, without the liability of the operator of the webpage, the person concerned could hardly receive compensation for the grievance. However, the proportionality of the restriction is open to doubt from two perspectives: is it proportionate to hold the operator of the webpage liable for the expression which proved to be unlawful; and moreover, is the extent of the liability (that is, the amount of compensation) proportionate?

[65] If the liability for the publication of comments is based on the very fact of the publication itself, it is not justified to distinguish between moderated and non-moderated comments in regard to the proportionality of the restriction on the fundamental right in question. ... The Constitutional Court has already held that the liability of press organs - not of the author - as applied in order to protect personality rights is constitutional.”

II. RELEVANT DOMESTIC LAW

26. Act no. IV of 1959 on the Civil Code, as in force at the material time, provides:

Article 75

“(1) Personality rights shall be respected by everyone. Personality rights are protected under this Act.

(2) The rules governing the protection of personality rights are also applicable to legal personalities, except the cases where such protection can, due to its character, they only apply to private individuals.

(3) Personality rights will not be violated by conducts to which the holder of rights has given consent, unless such consent violates or endangers an interest of society. In any other case a contract or unilateral declaration restricting personality rights shall be null and void.”

Article 78

“(1) The protection of personality rights shall also include the protection of reputation.

(2) In particular, the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person, shall constitute defamation.”

27. Act no. CVIII of 2001 on Electronic Commercial Services etc. provides as follows:

Section 1

“(4) The scope of this Act shall not extend to communications, including contractual statements, made by persons acting outside the sphere of economic or professional activities or public duties by making use of an information society-related service.”

Section 2

“For the purposes of this Act:

a) Electronic commercial service is an information-society service for selling, buying, exchanging or obtaining in any other manner of a tangible, negotiable movable property - including money, financial securities and natural forces which can be treated in the same way as a property - a service, a real estate or a right having pecuniary value (henceforth together: goods); ...

l) Provider of intermediary services: any natural or legal person providing an information society service, who

...

lc) stores information provided by a recipient of the service (hosting) (tárhelyszolgáltatás)”

III. RELEVANT INTERNATIONAL AND COMPARATIVE LAW

28. The relevant material found in the instruments of the Council of Europe, the United Nations and the European Union as well as in the national law of various Member States is outlined in paragraphs 44 to 58 of the judgment Delfi AS v. Estonia [GC] (no. 64569/09, ECHR 2015).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

29. The applicants complained that the rulings of the Hungarian courts establishing objective liability on the side of Internet websites for the contents of users’ comments amounts to an infringement of freedom of expression as provided in Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

30. The Government contested that argument.

A. Admissibility

31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicants

32. At the outset, the applicants drew attention to the EU framework governing intermediary liability and the relevant international standards developed by the United Nations Special Rapporteur on Freedom of Expression as well as the Council of Europe expressed notably by the Committee of Ministers.

33. Moreover, in their view, it was immaterial which precise domestic legal provisions had served as the basis of the restriction complained of. The State interference resulted in the applicants’ objective liability for the comments made on their websites.

34. They disputed the rulings of the Hungarian courts according to which the comments had violated others’ right to good reputation. Those comments had appeared in a public debate on a matter of common interest. The debate concerned the unethical conduct of a service-provider, where there should be little restriction on expressions, even disturbing ones, especially when it comes to value judgments as in the present case. In any case, the comments could not be equated with edited readers’ letters.

35. The applicants also contended that the lawfulness of the interference leaves a lot to be desired because the domestic legal practice was divergent in such cases.

36. As to the Government’s suggestion that liability for comments could be avoided either by pre-moderation or by disabling commenting altogether, the applicants argued that both solutions would work against the very essence of free expression on the Internet by having an undue chilling effect.

37. The applicants furthermore contended that imposing strict liability on online publications for all third-party contents would amount to a duty imposed on websites to prevent the posting, for any period of time, of any user-generated content that might be defamatory. Such a duty would place an undue burden on many protagonists of the Internet scene and produce significant censoring, or even complete elimination, of user comments to steer clear of legal trouble - whereas those comments tend to enrich and democratise online debates.

38. It was noteworthy that the law of the European Union and some national jurisdictions contained less restrictive rules for the protection of rights of others and to manage liability of hosting service providers. Indeed, the application of the “notice and take down” rule was the adequate way of enforcing the protection of reputation of others.

39. The stance of the Hungarian authorities had resulted in disproportionate restriction on the applicants’ freedom of expression in that they had had to face a successful civil action against them, even though they had removed the disputed contents at once after they had learnt, from the court action, that the company concerned had perceived them as injurious. The legal procedure, along with the fees payable, must be seen as having a chilling effect.

40. To conclude, the applicants maintained that the simple application of the traditional rules of editorial responsibility, namely strict liability, was not the answer to the new challenges of the digital era. Imposing strict liability on online publications for all third-party content would have serious adverse repercussions for the freedom of expression and the democratic openness in the age of Internet.

(b) The Government

41. The Government conceded that there had been an interference with the applicants’ right to freedom of expression, albeit one prescribed by law and pursuing the legitimate aim of the protection of the rights of others. In their view, the authorities had acted within their margin of appreciation essentially because by displaying the comments the applicants had exceeded the limits of freedom of expression as guaranteed under the Convention.

42. The Government noted that the courts had not availed themselves of the notion of objective liability to be borne by Internet service providers for users’ comments. Pursuant to its Section 1(4), Act no. CVIII of 2001 on Electronic Commercial Services (see paragraph 22 above) had not been applicable in the case, since its scope did not extend to communications made by persons acting outside the sphere of economic or professional activities or public duties by making use of an information society-related service. The applicants’ objective liability had occurred since they had disseminated opinions privately expressed by other persons in a manner violating the law. Consequently, the general provisions of the Civil Code governing the protection of personality rights had been relied on by the courts. As they stated, an expression damaging reputation might also be committed by imparting and disseminating information obtained from other persons. The expressions published had contained unduly injurious, insulting and humiliating statements of facts which were contrary to the rules governing the expression of opinions. The publication of a fact might also amount to an opinion since the circumstances of the publication might reflect an opinion. Honour and reputation, however, did constitute an outer limit even to opinions or value judgments. Under Articles 75(1) and 78(1)-(2) of the Civil Code, the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person constituted defamation.

43. The applicants’ own right to impart and disseminate information and ideas was in no way violated. Indeed, they had not disputed that the comments had infringed the plaintiff’s personality rights. As regards the publication of the ideas of others, to avoid the legal consequences of allowing the comments the applicants could have pre-moderated them or not disallowed them altogether. Those who enabled the display of unmoderated comments on their websites should foresee that unlawful expressions might also be displayed - and sanctioned under the rules of civil law.

44. In assessing the necessity of the interference, the Government argued that the case involved a conflict between the right to freedom of expression and the protection of the honour and rights of others. The national courts had solved the conflict by weighing the relevant considerations in a manner complying with the principles laid down in Article 10 of the Convention. The comments were undoubtedly unlawful; and the sanctions applied were not disproportionate in that the courts limited themselves to establishing the breach of the law and obliging the applicants to pay only the court fees.

2. The Court’s assessment

45. The Court notes that it 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 Court sees no reason to hold otherwise.

46. Such an interference with the applicant company’s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in a democratic society”.

47. In the present case the parties’ opinion differed as to whether the interference with the applicants’ freedom of expression was “prescribed by law”. The applicants argued that under the European legislation hosting service providers had restricted liability for third-party comments. The Government referred to section 1(4) of Act no. CVIII of 2001 to the effect that private expressions, such as the impugned comments, fell outside the scope of that Act. They relied on section 75(1) and 78(1)-(2) of the Civil Code and argued that the applicants were liable for imparting and disseminating private opinions expressed by third-parties.

48. The Court observes that the Court of Appeal concluded that the applicants’ case did not concern electronic commercial activities, and, in any case, pursuant to its section 1(4), Act no. CVIII of 2001 was not applicable to the impugned comments (see paragraph 20 above). The Kúria, while upholding the second-instance judgment found, without further explanation, that the applicants were not intermediaries in terms of section 2(lc) of that Act (see paragraph 22 above).

The domestic courts, thus, chose to apply Article 78 of the Civil Code, although, apparently, for different reasons.

49. The Court reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999-III). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004-I). Thus, the Court confines itself to examining whether the Kúria’s application of the relevant provisions of the Civil Code to the applicants’ situation was foreseeable for the purposes of Article 10 § 2 of the Convention. As the Court has previously held, the level of precision required of domestic legislation - which cannot provide for every eventuality - depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 142, ECHR 2012). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV).

50. The Court notes that the Kúria did not embark on an explanation whether and how Directive 2000/31/EC was taken into account when interpreting section 2(lc) of Act no. CVIII of 2001 and arriving to the conclusion that the applicants were not intermediaries in terms of that provision, despite the applicants’ suggestion that the correct application of the EU law should have exculpated them in the circumstances.

51. Nonetheless, the Court is satisfied on the facts of this case that the provisions of the 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. Thus, the Court considers 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. It therefore concludes that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention (see mutatis mutandis, Delfi AS, cited above, §§ 125 to 129).

52. The Government submitted that the interference pursued the legitimate aim of protecting the rights of others. The Court accepts this.

53. It thus remains to be ascertained whether it was “necessary in a democratic society” in order to achieve the aim pursued.

(a) General principles

54. The fundamental principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law and have been summarised as follows (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998-VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005-II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013; and most recently in Delfi AS, cited above, § 131):

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it 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. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”

55. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Couderc and Hachette Filipacchi Associés v. France [GC] (no. 40454/07, § 89, 10 November 2015; Bladet Tromsø and Stensaas, cited above, § 59; and Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Delfi AS, cited above, § 132; Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001-I).

56. Moreover, the Court has previously held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012; Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009; and Delfi, cited above, § 133). At the same time, in considering the “duties and responsibilities” of a journalist, the potential impact of the medium concerned is an important factor (see Delfi, cited above, § 134; see also Jersild v. Denmark, cited above, § 31).

57. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Delfi AS, cited above, § 137; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; and A. v. Norway, no. 28070/06, § 64, 9 April 2009).

58. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Delfi AS, cited above, § 138; Axel Springer AG, cited above, § 84; Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).

59. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases of Hachette Filipacchi Associés, cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Delfi AS, cited above, § 139; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999-III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).

(b) Application of those principles to the present case

(i) Preliminary remarks and applicable criteria

60. In order to determine the standards applicable in the instant case, the Court will consider the nature of the applicants’ rights of expression in view of their role in the process of communication and the specific interest protected by the interference, namely - as was implied by the domestic courts - the rights of others.

61. The Court notes that both the first applicant, as a self-regulatory body of internet service providers, and the second applicant, as a large news portal, provided forum for the exercise of expression rights, enabling the public to impart information and ideas. Thus, the Court shares the Constitutional Court’s view according to which the applicants’ conduct must be assessed in the light of the principles applicable to the press (see paragraph 25 above).

62. The Court reiterates in this regard that although not publishers of the comments in the traditional sense, Internet news portals must, in principle, assume duties and responsibilities. Because of the particular nature of the Internet, those duties and responsibilities may differ to some degree from those of a traditional publisher, notably as regards third-party contents (see Delfi AS, cited above, § 113).

63. In particular, the Court has examined in the case of Delfi AS the duties and responsibilities under Article 10 § 2 of large Internet news portals where they provide, for economic purposes, a platform for user-generated comments and where the users of such platforms engage in clearly unlawful expressions, amounting to hate speech and incitement to violence.

64. However, the present case is different. Although offensive and vulgar (see paragraphs 12 and 14 above), the incriminated comments did not constitute clearly unlawful speech; and they certainly did not amount to hate speech or incitement to violence. Furthermore, while the second applicant is the owner of a large media outlet which must be regarded as having economic interests, the first applicant is a non-profit self-regulatory association of Internet service providers, with no known such interests.

65. The domestic courts found that the impugned statements violated the personality rights and reputation of the plaintiff company, a moral person. At this juncture the Court notes that the domestic authorities accepted without any further analysis or justification that the impugned statements were unlawful as being injurious to the reputation of the plaintiff company.

66. As the Court has previously held, legal persons could not claim to be a victim of a violation of personality rights, whose holders could only be natural persons (see Sdružení Jihočeské Matky v. Czech Republic (dec.), no. 19101/03, 10 July 2006). There is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court, interests of commercial reputation are devoid of that moral dimension (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). Moreover, the Court reiterates that there is an interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki v. Poland, no. 27209/03, § 35, ECHR 2009).

67. However, in the present case it is not necessary to decide whether the plaintiff company could justifiably rely on its right to reputation, seen from the perspective of Article 8 of the Convention. It suffices to observe that the domestic courts found that the comments in question constituted an infringement of its personality rights. Indeed, it cannot be excluded that the impugned comments were injurious towards the natural person behind the company and that, in this sense, the decisions of the domestic courts intended to protect, in an indirect manner, that person from defamatory statements. The Court will therefore proceed under the assumption that - giving the benefit of the doubt to the domestic courts’ stance identifying a valid reputational interest - there was to be a balancing between the applicants’ Article 10 rights and the plaintiff’s Article 8 rights.

68. The Court has already had occasion to lay down the relevant principles which must guide its assessment in the area of balancing the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. It identified a number of relevant criteria, out of which the particularly pertinent in the present case, to which the Court will revert below, are: contribution to a debate of public interest, the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication, and the gravity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 93; Von Hannover v. (no. 2), cited above, §§ 108 to 113, ECHR 2012; and Axel Springer AG, cited above, §§ 90-95, 7 February 2012). At this juncture the Court would add that the outcome of such a balancing performed by the domestic courts will be acceptable in so far as those courts applied the appropriate criteria and, moreover, weighed the relative importance of each criterion with due respect paid to the particular circumstances of the case.

69. In the case of Delfi AS, the Grand Chamber identified the following specific aspects of freedom of expression in terms of protagonists playing an intermediary role on the Internet, as being relevant for the concrete assessment of the interference in question: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and the consequences of the domestic proceedings for the applicant company (see Delfi AS, cited above, §§ 142-43).

70. These latter criteria were established so as to assess the liability of large Internet news portals for not having removed from their websites, without delay after publication, comments that amounted to hate speech and incitement to violence. However, for the Court, they are also relevant for the assessment of the proportionality of the interference in the present case, free of the pivotal element of hate speech. It is therefore convenient to examine the balancing, if any, performed by the domestic courts and the extent to which the relevant criteria (see Von Hannover (no. 2), cited above, §§ 108 to 113) were applied in that process, with regard to the specific aspects dictated by the applicants’ respective positions (see Delfi AS, cited above, §§ 142-43).

71. Consequently, it has to be ascertained if the domestic authorities struck an appropriate balance between the applicants’ right under Article 10, as protagonists in providing Internet platform for, or inviting expressions from, third-parties on the one hand, and the rights of the plaintiff company not to sustain allegations infringing its rights under Article 8, on the other. In particular, in the light of the Kúria’s reasoning, the Court must examine whether the domestic courts’ imposition of liability on the applicants for third-party comments was based on relevant and sufficient reasons in the particular circumstances of the case.

The Court itself will proceed to assess the relevant criteria as laid down in its case-law to the extent that the domestic authorities failed to do so.

(ii) Context and content of the impugned comments

72. As regards the context of the comments, the Court notes that the underlying article concerned the business practice of two large real estate websites, which was deemed misleading and injurious to their clients, thus there was a public interest in ensuring an informed public debate over a matter concerning many consumers and Internet users. The conduct in question had already generated numerous complaints to the consumer protection organs and prompted various procedures against the company concerned (see paragraph 16 above). The Court is therefore satisfied that the comments triggered by the article can be regarded as going to a matter of public interest.

Moreover, against this background, the article cannot be considered to be devoid of a factual basis or provoking gratuitously offensive comments.

73. The Court attaches importance to the fact that the second applicant is the owner of a large news portal, run on a commercial basis and obviously attracting a large number of comments. On the contrary, there is no appearance that the situation of the first applicant, the self-regulatory association of Internet content providers, was in any manner similar; indeed, the latter’s publication of contents of predominantly professional nature was unlikely to provoke heated discussions on the Internet. At any rate, the domestic courts appear to have paid no attention to the role, if any, which the applicants respectively played in generating the comments.

74. As regards the contents of the comments, the domestic courts found that they had overstepped the acceptable limits of freedom of opinion and infringed the right to reputation of the plaintiff company, in that they were unreasonably offensive, injurious and degrading.

75. For the Court, the issue in the instant case is not defamatory statements of fact but value judgments or opinions, as was admitted by the domestic courts. They were denouncements of a commercial conduct and were partly influenced by the commentators’ personal frustration of having been tricked by the company. Indeed, the remarks can be considered as an ill-considered reaction (compare and contrast Palomo Sánchez and Others cited above, § 73). They were posted in the context of a dispute over the business policy of the plaintiff company perceived as being harmful to a number of clients.

76. Furthermore, the expressions used in the comments were offensive, one of them being outright vulgar. As the Court has previously held, offence may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003); but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression (see Uj, cited above, § 23).

77. Without losing sight of the effects of defamation on the Internet, especially given the ease, scope and speed of the dissemination of information (see Delfi AS, cited above,§ 147), the Court also considers 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 expressions.

(iii) Liability of the authors of the comments

78. As regards the establishment, in the civil proceedings, of the commentators’ identities, the Court notes that the domestic authorities did not at all address its feasibility or the lack of it. The Constitutional Court restricted its analysis to stating that the injured party was unlikely to receive any compensation without the liability of the operator of the Internet portal.

At this juncture, the Court notes that there is no appearance that the domestic courts enquired into the conditions of commenting as such or into the system of registration enabling readers to make comments on the applicants’ websites.

79. The national courts were satisfied that it was the applicants that bore a certain level of liability for the comments, since they had “disseminated” defamatory statements (see paragraph 42 above), however without embarking on a proportionality analysis of the liability of the actual authors of the comments and that of the applicants. For the Court, the conduct of the applicants providing platform for third-parties to exercise their freedom of expression by posting comments is a journalistic activity of a particular nature (see Delfi AS, cited above, §§ 112-13). Even accepting the domestic courts’ qualification of the applicants’ conduct as “disseminating” defamatory statements, the applicant’s liability is difficult to reconcile with the existing case-law according to which “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001-III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013; and Delfi AS, cited above, § 135).

(iv) Measures taken by the applicants and the conduct of the injured party

80. The Court observes that although the applicants immediately removed the comments in question from their websites upon notification of the initiation of civil proceedings (see paragraphs 15 above), the Kúria found them liable on the basis of the Civil Code, since by enabling readers to make comments on those websites and in connection to the impugned article, they had assumed objective liability for any injurious or unlawful comments made by those readers. As the Budapest Court of Appeal held, the circumstances of removing the comments were not a matter relevant for the assessment of objective liability but one for the assessment of any compensation (see paragraph 20 above).

81. The Court observes that the applicants took certain general measures to prevent defamatory comments on their portals or to remove them. Both applicants had a disclaimer in their General terms and conditions stipulating that the writers of comments - rather than the applicants - were accountable for the comments. The posting of comments injurious to the rights of third parties were prohibited. Furthermore, according to the Rules of moderation of the second applicant, “unlawful comments” were also prohibited. The second applicant set up a team of moderators performing partial follow-up moderation of comments posted on its portal. In addition, both applicants had a notice-and-take-down system in place, whereby anybody could indicate unlawful comments to the service provider so that they be removed. The moderators and the service providers could remove comments deemed unlawful at their discretion (see paragraphs 7-10 above).

82. The domestic courts held that, by allowing unfiltered comments, the applicants should have expected that some of those might be in breach of the law. For the Court, this amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet.

83. The Court also observes that the injured company never requested the applicants to remove the comments but opted to seek justice directly in court - an element that did not attract any attention in the domestic evaluation of the circumstances.

Indeed, the domestic courts imposed objective liability on the applicants for “having provided space for injurious and degrading comments” and did not perform any examination of the conduct of either the applicants or the plaintiff.

(v) Consequences of the comments for the injured party

84. As the Court has previously held in the context of compensation for the protraction of civil proceedings, juristic persons may be awarded compensation for non-pecuniary damage, where consideration should be given to the company’s reputation (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000-IV). However, the Court reiterates that there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court interests of commercial reputation are primarily of business nature and devoid of the same moral dimension which the reputation of individuals encompasses. In the instant application, the reputational interest at stake is that of a private company; it is thus a commercial one without relevance to moral character (see, mutatis mutandis, Uj, cited above, § 22).

85. The consequences of the comments must nevertheless be put into perspective. At the time of the publication of the article and the impugned comments, there were already ongoing inquiries into the plaintiff company’s business conduct (see paragraph 17 above). Against this background, the Court is not convinced that the comments in question were capable of making any additional and significant impact on the attitude of the consumers concerned. However, the domestic courts do not appear to have evaluated whether the comments reached the requisite level of seriousness and whether they were made in a manner actually causing prejudice to a legal person’s right to professional reputation (see paragraph 57 above).

(vi) Consequences for the applicants

86. The applicants were obliged to pay the court fees, including the fee paid by the injured party for its legal representation (see paragraph 22 above), but no awards were made for non-pecuniary damage. However, it cannot be excluded that the court decision finding against the applicants in the present case might produce legal basis for a further legal action resulting a damage award. In any event, the Court is of the view that the decisive question when assessing the consequence for the applicants is not the absence of damages payable, but the manner in which Internet portals such as theirs can be held liable for third-party comments. Such liability 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 on the Internet. This effect could be particularly detrimental for a non-commercial website such as the first applicant (compare and contrast Delfi AS, cited above, § 161).

87. The Constitutional Court held that the operation of Internet portals allowing comments without prior moderation was a forum of the exercise of freedom of expression (see paragraph 25 above). Indeed, the Court stressed on many occasions the essential role which the press plays in a democratic society (see De Haes and Gijsels v. Belgium, cited above, § 37) - a concept which in modern society undoubtedly encompasses the electronic media including the Internet.

88. However, the Court cannot but observe that the Hungarian courts paid no heed to what was at stake for the applicants as protagonists of the free electronic media. They did not embark on any assessment of how the application of civil-law liability to a news portal operator will affect freedom of expression on the Internet. Indeed, when allocating liability in the case, those courts did not perform any balancing at all between this interest and that of the plaintiff. This fact alone calls into question the adequacy of the protection of the applicants’ freedom-of-expression rights on the domestic level.

(vii) Conclusion

89. The Court considers that the rigid stance of the Hungarian courts reflects a notion of liability which effectively precludes the balancing between the competing rights according to the criteria laid down in the Court’s case law (see Von Hannover (no. 2), cited above, § 107).

90. At this juncture, the Court reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland, cited above, § 67).

91. However, 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. It is true that, in cases where third-party user comments take the form of hate speech and direct threats to the physical integrity of individuals, the rights and interests of others and of the society as a whole might entitle Contracting States to impose liability on Internet news portals if they failed to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties (see Delfi AS, cited above, § 159). However, the present case did not involve such utterances.

The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

92. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

93. The applicants made no damage claim.

B. Costs and expenses

94. The applicants, jointly, claimed 5,100 euros (EUR) for the costs and expenses incurred before the Court. This sum corresponds to 85 hours of legal work billable by their lawyer at an hourly rate of EUR 60.

95. The Government contested this claim.

96. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed.

C. Default interest

97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicants, jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,100 (five thousand one hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 2 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Vincent De Gaetano
Registrar Vice-President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kūris is annexed to this judgment.

V.D.G.
F.E.P.

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You are here: BAILII >> Databases >> European Court of Human Rights >> MAGYAR TARTALOMSZOLGALTATOK EGYESULETE AND INDEX.HU ZRT v. HUNGARY - 22947/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 135 (02 February 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/135.html Cite as: [2016] ECHR 135