Defamation / Reputation
Commonwealth v. Pon
Closed Mixed Outcome
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The European Court of Human Rights found that the Swedish courts had not violated an individual’s right to a private life by refusing to find a small non-profit association liable for a defamatory third-party comment on its blog. The case arose from a blog and a comment that appeared on the website of a small non-profit organization that were defamatory of Andreas Daniel Pihl. Upon notice from Mr. Pihl, the organization removed the impugned blog post and the comment, acknowledged their falsity, and apologised to Mr. Pihl. Mr. Pihl subsequently brought defamation proceedings against the organization, but was unsuccessful before the domestic courts. His claim before the European Court of Human Rights rested on the fact that his right to a private life under Article 8 of the European Convention had been violated by the Swedish courts’ inability to hold the organizaton liable for the third party content. In its decision, the European Court of Human Rights paid particular consideration to the fact that the comment itself did not amount to hate speech or incitement to violence, and that the association removed the comment swiftly following notice from the aggrieved individual. The European Court of Human Rights concluded there had been no violation of Mr. Pihl’s right to a private life.
In September 2011, a blog was published on the website of a small non-profit organization in Sweden that accused Andres Daniel Pihl of being involved in a Nazi party. The day after publication, an anonymous person commented on the post that Mr. Pihl was “also a real hash-junkie according to several people I have spoken to”. [para. 4]
While the blog allowed user comments to be posted, it contained a disclaimer that such comments were not verified before publication and that commenters were solely responsible for their statements. Commenters were also asked to “display good manners and obey the law”.
Days later, Mr. Pihl asked the organization to immediately remove both the blog post and the comment because they were false and damaging accusations. The organization removed the content the day after receiving this notice, and added a post in which it acknowledged the falsity of the information and made a public apology. Despite the removal of the blog post and the comment, Mr. Pihl was still able to locate the impugned statements through the search of his name on Internet search engines. As a result, he sued the organization for defamation. Mr. Pihl was unable to source the original commenter and was, therefore, unable to bring proceedings against them.
In November 2011, the Linkoping District Court dismissed the lawsuit against the organization. It rejected the claim on the ground that the statement was covered by an immunity under the Fundamental Law on Freedom of Expression. While the District Court concluded that the third-party comment was defamatory, it did not hold the organization responsible for failing to remove it from its blog sooner than it had done. The Swedish Court of Appeal upheld the judgment in November 2013, and the Supreme Court later refused Mr. Pihl leave to appeal.
Mr. Pihl brought an application before the European Court of Human Rights complaining that the fact that Swedish legislation prevented him from holding the organization responsible for the defamatory comment had violated his right to respect for his private life under Article 8 of the European Convention on Human Rights.
The European Court of Human Rights (Court) first discussed whether the comment had met the threshold of seriousness required to invoke the protection of Article 8 of the European Convention on Human Rights (Convention). It reiterated that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept and extends to many aspects of one’s personal identity, including his or her name or image. Nevertheless, the Court reiterated that an attack on personal honor and reputation “must attain a certain level seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to private life” before Article 8 of the Convention will be interfered with. [para. 24] In this case, the Court agreed with the domestic courts’ findings that the comment on the blog post was defamatory because of the context in which it had been made. It accordingly held that Mr. Pihl was justified to invoke the protection of Article 8 of the Convention, but noted that the comment did not amount to hate speech or incitement to violence.
The Court reiterated that Article 8 of the Convention imposed a positive obligation on States to adopt “measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.” [para. 26] The Court, however, emphasized that the imposition of positive obligations should be decided on a case-by-case basis after a careful consideration of relevant competing interests, including the right to freedom of expression. Thus, the underlying issue in the present case was whether the Swedish courts had struck a fair balance between Mr. Pihl’s right to respect for his private life and the organization’s right to freedom of expression.
The Court ruled that there had been no violation of Article 8 of the Convention after considering a number of relevant factors when considering cases of intermediary liability, namely consideration of (i) the context of the comments, (ii) the measures applied by the company in order to prevent or remove defamatory comments, (iii) the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and (iv) the consequences of the domestic proceedings for the company.
The Court noted that because the organization was a small non-profit entity, unknown to the wider public, it was unlikely that the blog would attract a large number of readers. The Court reiterated that expecting the organization to assume that some unfiltered comments might be in breach of the law would amount to requiring excessive and impractical forethought capable of undermining the right to impart information via the Internet. In this regard, the Court observed that the comment about Mr. Pihl did not concern his political views and had nothing to do with the content of the blog post. As a result, it could hardly have been anticipated by the organization. The Court also took into account the existing disclaimer by the organization on its blog that commenters were solely responsible for their own statements, and the fact that the organization removed the blog post and the comment one day after being notified by the applicant that the post was incorrect and that he wanted it removed.
In regard to the alleged possibility of still being able to find the comment via search engines, the Court further stated that Mr. Pihl was still entitled to request that the search engines remove any traces of the comment pursuant to the Court of Justice of the European Union decision in Google Spain, No. C-131/12. Turning to the liability of the originator of the comment, the Court noted that Mr. Pihl had not demonstrated that he took any further measures, other than finding the IP address of the commenter, to try to obtain the identity of the author of the comment
Finally, the Court highlighted the chilling effect intermediary liability can have on free speech online. The Court reiterated that liability for third-party comments “may have negative consequences on the comment-related environment of an internet portal and thus a chilling effect on freedom of expression via [the] internet. This effect could be particularly detrimental for a non-commercial website.” [para. 35]
In light of the above, the Court found no violation of Article 8 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision on intermediary liability has a mixed outcome. The decision expands freedom of expression by confirming that an individual’s right to a reputation had not been violated by domestic courts refusing to find an operator of a blog liable for third-party defamatory comments. Nevertheless, some uncertainty still remains in the European Court of Human Rights’ jurisprudence on this issue. The Court’s decision supports the view that a website host will only be liable for defamatory content when it has received notice from an individual of its defamatory nature. This is a positive sign that the Court is willing to distinguish defamatory comments from “clearly unlawful speech” which, according to Delfi v. Estonia, may require an intermediary to take measures to remove the content without delay after publication (regardless of notice).
Nevertheless, the approach adopted in Pihl v. Sweden is still out of step with the international special mandates on this issue, who have stated that “intermediaries should never be liable for any third party content relating to those services unless they specifically intervene in that content or refuse to obey an order adopted in accordance with due process guarantees by an independent, impartial, authoritative oversight body (such as a court) to remove it and they have the technical capacity to do that”. [empasis added] Furthermore, the distinction made by the Court on the basis that the organization was a small non-profit association is also problematic. One commentator has noted that “[b]y narrowing the exoneration to only small not-profit operators of online platforms, the Court’s case law leaves a broad opening for the member states to impose liability on all other online platforms with user generated content, including defamatory content, even in cases of expeditious removal-upon-notice by the operators.” The Court’s implicit endorsement of the Google Spain judgment is also concerning from a free speech perspective, as it would appear to support the use of the “right to be forgotten” to de-index search results to webpages that contained defamatory third-party comments.
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