EHRM 2 februari 2016 (MTE en Index.hu/Hongarije), zaaknr. 22947/13
Aansprakelijkheid van nieuwssite voor comments van derden.
De onderhavige zaak is anders dan in Delfi (EHRM 16 juni 2915, zaaknr. 64569/09).
Although offensive and vulgar, 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.
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. Furthermore, the expressions used in the comments were offensive, one of them being outright vulgar. 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. 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.
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.
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). 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.
Categorieën: Journalist, Positie tussenpersonen, Vrijheid van meningsuiting
Tags: aansprakelijkheid voor comments van derden, Delfi-arrest, low register of style, nieuwssite, positie tussenpersonen, user generated content, vrijheid van meningsuiting