In its February 2, 2016 ruling, the European Court of Human Rights stated that an online news portal cannot be held responsible for offensive or vulgar comments posted by its readers. The court unanimously held that placing exclusive responsibility on news portals responsible for such comments is a violation of Article 10 of the European Convention on Human Rights. This is an important development and the sign of a new direction after the same court’s 2015 decision in Delfi v. Estonia, in which the news portal was held responsible for comments posted by readers.

In 2015, the news of an ECHR ruling circled the globe: the Court had ruled in Delfi v. Estonia that news portals could be held responsible for vulgar or offensive comments appearing on their sites. In its ratio, the Court focused more on the right to one’s reputation than on freedom of expression. Since then, many commentators, experts, and market actors have pointed to the dangers in this line of argumentation, primarily because this decision could have a chilling effect by inciting news portals – in an effort to mitigate risks – to close down comments entirely, thereby removing an important platform for the expression of opinion on the internet.

In the case of MTE and Index.hu Zrt v. Hungary, the ECHR emphasized freedom of expression on the internet and found that making internet portals exclusive responsible for comments is a violation of the Convention.

The Court stated that if effective procedures are in place to ensure a rapid response, the notice-and-take-down system can function in most cases as an appropriate means to protect the rights and interests of all stakeholders. It conceded, with reference to Delfi, that in cases where a third party user posts comments in the form of hate speech, State Parties are entitled – on the basis of the rights and interests of others and society as a whole – to hold internet news portals responsible, insofar as the latter do not take measures to promptly remove comments which are clearly unlawful, even where the injured party or third party has not made a request to this effect. In the case at hand, however, there were no such statements. Accordingly, the ECHR held that Article 10 of the Convention had been violated.

Background to the MTE and Index.hu v. Hungary case: 2010-2016

In 2010, the Hungarian Association of Content Providers (Magyarországi Tartalomszolgáltatók Egyesülete, or MTE) published a statement on its website in which it condemned the business practices of two real estate websites as unethical. The Index.hu internet news portal picked up the story. In response to the article, users posted various vulgar and offensive comments on both the MTE and Index websites. The company owning the real estate websites then sued the media providers that had allowed these comments to be published. According to the Hungarian court, the impugned comments were offensive, injurious, and humiliating, and had crossed the line of permissible freedom of opinion. The domestic court further held that MTE and Index, by giving their readers the option of posting comments on their websites, thereby also assumed objective liability for offensive or unlawful reader comments. The case was then brought to the ECHR.

The ECHR reiterated the principles it had enunciated in Delfi, saying that internet news portals are bound by “duties and responsibilities” vis-à-vis the comments posted on their sites. However, it also indicated that the impugned comments, albeit offensive and vulgar, could not be unambiguously qualified as unlawful speech, and certainly did not constitute either hate speech or incitement to violence.

The Hungarian courts merely accepted, without any further analysis or reasoning, that the statements were unlawful, as they infringed upon the reputation of the plaintiff company. The ECHR recalled the principles which should be taken into account when balancing freedom of opinion with the protection of reputation under Article 8 of the Convention. It also reviewed the aspects which it had identified in Delfi: the context of comments, measures taken by the plaintiff company to prevent or remove defamatory comments, the responsibility of the actual author of the comments as an alternative to the responsibility of the media provider, and the consequences of domestic proceedings upon the plaintiff company.

With respect to the context and content of the impugned comments, the Court pointed out that the comments touched on an issue of public interest: the business practices of two major real estate websites. Although the expressions used in the comments were offensive and outright vulgar, the Court held that – while keeping in mind in the effects of defamation on the internet – regard must be had to the specificities of the style of communication on certain internet portals.

The Court held that the crucial issue is the manner in which internet portals are held responsible for comments by third parties. This responsibility can have foreseeable negative consequences on the commenting environment on internet web pages, for example by encouraging providers to close comments entirely. These consequences could have a direct or indirect chilling effect on freedom of expression on the internet.

(For further information please contact: Bea Bodrogi, bbodrogi AT gmail DOT com)