Case Summary and Outcome

The European Court of Human Rights (“Court“), unanimously ruled that requiring the applicant to disclose personal information of its registered users violated the applicant’s freedom of expression. The applicant was a media company, publisher of the offline newspaper and its online version Der Standard. The case concerned online comments published by registered users on the applicant’s website against two right-wing Austrian politicians. The politicians and the political party requested the applicant to remove the comments and disclose the identities of the two authors to initiate civil and criminal procedures. The applicant deleted the comments but refused to provide the identity of the authors. On an application by the political leaders, the Supreme Court of Austria ordered the applicant to disclose personal data of the users. The Court found this to be a violation of the applicant’s Article 10 rights. By not taking into account the political nature of the contested comments and by not running any test on balancing competing interests, the domestic courts failed to protect the applicant’s right to freedom of expression. Although the comments were published by the users and not the applicant, the direction for removal of the comments interfered with the users’ anonymity which consequently interfered with the applicant’s right to promote the free flow of information and ideas.

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Facts

The applicant is a media company that runs a website (derStandard.at). “At the end of each article, the applicant company invites registered users to post comments with a banner stating “Your opinion counts” and a field entitled “Your comment …” that allows them to insert text” [para. 5]. Registered users are due to provide a surname, name, and email address. Optionally, they can state their postal address. The applicant explicitly states that the data of registered users will not be disclosed. On registration, users agree to comply with the Community Guidelines (general terms and conditions). The Community Guidelines state that the applicant company “will only disclose user data if required to do so by law” [para. 6].

The applicant uses an algorithmic and manual moderation system. All user comments are first run through an automated key-word screening system before publishing. If the system flags some content to be problematic, then a manual review steps in. After content is published, “comments are subject to an editorial review by the applicant company on a regular basis” [para. 10]. The applicant has also implemented a “notice and take down system” meaning that users themselves can report certain comments by using a report option.

The applicant claimed that flagged content is “liberally” removed and that the data of users “[were] disclosed, upon request and in accordance with the law, to third parties if it [was] sufficiently clear that the comment in question may have violated a person’s rights” [para. 12].

The case is about two sets of comments. The first set concerns politician K.S and a political party FPK. K.S. was a member of a local parliament and FPK, a right-wing regional political party. A user with the alias “Tango Korrupti2013” wrote: “Corrupt politician-assholes forget, [but] we don’t ELECTION DAY IS PAYDAY!!!!!”.  There was another comment, this one made by “rrrn”: “[It was] to be expected that FPOe/K, … …-opponents would get carried away. [That would] not have happened if those parties had been banned for their ongoing Nazi revival”. K.S. and FPK asked the applicant to disclose the name, address, and email of the authors to start the civil and criminal proceeding against them. The applicant refused to do so but removed the comments.

The second comment was about H.K. (a member of the Austrian parliament and general secretary of the right-wing Austrian Freedom Party (Freiheitliche Partei Österreichs, FPÖ)). In 2013, H.K. gave an interview where he stated “that posters and slogans had to generate emotion, because without emotion there could be no success in politics” [para. 18]. The interview was published on the applicant’s website. One of the comments read as follows: “[I]f we did not perpetually misunderstand [the meaning of] freedom of expression and if undermining our constitution and destabilising our form of government were consequently to be made punishable – or at least, if [anti-mafia law] were for once to be applied to the extreme-right scene in Austria – then [H.K.] would be one of the greatest criminals in the Second Republic …”. H.K asked for the removal of the comment and disclosure of data of the author. Yet again, the applicant deleted the comments but refused to disclose user information.

There were two civil proceedings against the applicant. The first one was started on June 11, 2012, by K.S. and FPK. They instituted a civil process against the applicant relying on the E-Commerce Act. The process took place before the Vienna Regional Civil Court by K.S. seeking for data of “Tango Korrupti2013”, while FPK targeted “rrrn”.

The applicant argued that the comments were value judgments and not defamatory. It relied on section 31(1) of the Media Act that provided the right to editorial confidentiality, meaning that media entities were entitled to refuse to disclose their sources. The court applied section 18(4) of the E‑Commerce Act since the applicant acted as a “service provider”. This provision prescribes that service providers are obliged to “transmit the name and address of a user of their service to third parties at the request [of those third parties] if they demonstrate an overriding legal interest in determining the identity of [that] user and [establishing the existence of] a particular illegal situation, and furthermore demonstrate that knowledge of such information constitutes a material prerequisite for legal prosecution” [para. 37]. This section relies on section 16 of the same Act which provides service providers safe harbors against liability for information published if: (i) the provider does not have actual knowledge of the illegal activity or illegal information or (ii) the provider, upon obtaining such knowledge acts expeditiously to remove or disable access to such information.

The court analyzed the content of the comments to dismiss the action. It found that the applicant’s obligation to disclose information under section 18 was not invoked since the plaintiff failed to establish that the comments were illegal. The court did not find it necessary to examine the issue of editorial confidentiality.

Following the plaintiffs’ appeal, the second-instance court overturned the judgment. On 26 May 2014, the higher court ordered the applicant to reveal data within 14 days. It argued that generally speaking, the contested posts could be defamatory. Yet, the real nature of the comments (statement of facts or value judgments) was to be decided in another process against the authors of comments. That was not the issue in the present proceedings. On the issue of editorial confidentiality, the court denied the applicant’s argument, because “there was no connection between the applicant company’s journalistic activities and the users’ comments” [para. 25]. The applicant had failed to show any kind of action or review by its employees to prove that there was editorial activity. The applicant appealed to the Supreme Court.

The Supreme Court upheld the decision. It agreed with the second-instance court on the issue of editorial confidentiality. The applicant did not exercise any journalistic activity. A mere “screening for keywords with the aid of software was not sufficient to establish a connection with journalistic activity; editorial ex post reviews would not lead to a different result, because they only related to comments that had already been published” [para. 26]. Regarding section 18(4) of the E‑Commerce Act, the court opined that the comments could have been defamatory in general. It concluded that the plaintiffs did prove overriding legal interest for obtaining personal data, “without specifying the considerations on which it had based that conclusion” [para. 26].

H.K. sued the applicant in other proceedings asking for disclosure of data of “try_error” user. It invoked the same arguments as the plaintiffs in the first case. The applicant used the same line of argumentation. The first-instance court dismissed the claim, but the appeal court upheld it, ordering the applicant to reveal data. The Supreme Court confirmed this order. Thus, the second case mirrored the first one.

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Decision Overview

In a unanimous decision delivered by Justice Grozev, the Court found that the applicant’s freedom of expression had been violated. In a partly dissenting opinion, Justice Eicke argued that the application was not admissible since Article 10 could not be extended to the applicant.

Before the Court, the applicant complained that the court’s order for disclosure of users’ data violated Article 10 of the Convention. It argued that users’ data assist media companies to inform the public and hence were journalistic sources, protected under the rule of editorial confidentiality. Additionally, it considered that the comments were not defamatory, but presented value judgments.

On the other side, the Government argued that the editorial confidentiality clause could not apply. The applicant platform was a host provider and regulation of the comments section did not make its activities journalistic in nature. As a result, they were exempted from liability under section 16 of the E-commerce Act. However, the protection had to be counterbalanced by an obligation to disclose user information to parties with overriding legal interests. They added that the State did not interfere with the applicant’s right to receive or impart information. The domestic courts did not order the removal of comments nor did they require the applicant to compensate plaintiffs. The proceedings regarding the comments were not final yet. Moreover, even if there was interference with the applicant’s right, it was based on law, pursued a legitimate aim, and was necessary in a democratic society.

The Court examined if the domestic courts interfered with the right to freedom of expression by following the three-step process of assessment under Article 10, that is, whether (a) there was an interference, (b) the interference was lawful and had a legitimate aim and (c) the interference was necessary in a democratic society.

• Whether there was an interference

Agreeing with the Government, the Court held that the user comments were not a journalistic source and the applicants could not rely on editorial confidentiality to protect user’s data. A journalistic source is “any person who provides information to a journalist” (Sanoma Uitgevers B.V. v. the Netherlands [GC], App. no. 38224/03 (2010) § 44, 14). The comments were not journalistic sources since they were addressed to the public, not a journalist. Nevertheless, the Court held that there are other ways of interfering with the applicant’s right.

The Court noted that the applicant’s function as an internet news provider was not the only activity that the applicant performed. The applicant, additionally, published a hard copy and online newspaper. These functions must be considered as a whole. The applicant “initiates conversations regarding its articles by inviting users to post comments” and takes an active role in guiding users “to write comments, describing those comments as an essential and valuable part of the news portal” [para. 73]. By obliging a news portal to disclose data of authors of online posts, a state could deter users “from contributing to debate and therefore lead to a chilling effect among users posting in forums in general. This affects, indirectly, also the applicant company’s right as a media company to freedom of press” [para. 74].

The Court then analyzed the concept of online anonymity and agreed with the Government that “the Convention does not provide for an absolute right to anonymity on the internet” [para. 75]. Nevertheless, it was stressed that anonymity is important for the free flow of ideas and that “[a]nonymity has long been a means of avoiding reprisals or unwanted attention” [para 76].

The court observed that the applicant protected users’ right to the private sphere and their freedom of expression through its anonymity policy. This type of anonymity would not be effective unless the applicant could defend it. Further, it rejected the State’s arguments on lack of a final decision on the lawfulness of the comments. It concluded that “interference lies in the lifting of anonymity and the effects thereof, irrespective of the outcome of any subsequent proceedings” [para 77]. Hence, there was interference in the applicant’s right.

• Whether the interference was lawful and had a legitimate aim

The Court found that the interference was prescribed under section 18(4) of the E-commerce Act and pursued the legitimate aim of protecting the reputation and rights of others.

• Whether the interference was necessary in a democratic society

Finally, the court analyzed the issue of necessity. It noted the importance of a fair balance between rights protected by Articles 8 and 10. If the national courts exercise the balance between two mentioned rights “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” (Axel Springer AG, App. no. 39954/08 (2012) § 88).

Citing Von Hannover v. Germany (no. 2) App. nos. 40660/08 and 60641/08 (February 7, 2012) among other cases, the court held that the criteria identified in balancing Article 8 and Article 10 are: “whether a contribution is made to a debate of public interest; the subject of the report in question; the prior conduct of the person concerned and how well he or she is known; the content, form, and consequences of the publication in question; and the gravity of the penalty imposed on the journalists or publishers” [para. 85].

The court referred to Ceylan v. Turkey App no. 23556/94 (July 8, 1999) among other cases to reiterate that there is little scope “for restrictions on political speech or on debate on matters of public interest” [para. 85]. Further, “(t)he limits of acceptable criticism are accordingly wider in respect of a politician than in respect of a private individual” [para. 87].

Turning to the present case, the court noted that the comments did not amount to hate speech or incitement to violence “nor were they otherwise clearly unlawful” [para. 89]. Instead, they discussed conduct of politicians in their public capacities which was an issue of public interest. According to the court, the second-instance court and Supreme Court of Austria did not perform the balance test; they “did not give any reasons why the plaintiffs’ interests in the disclosure of the data were ‘overriding’ the applicant company’s interests in protecting their authors’ anonymity” [para. 93]. This is of particular importance in cases where comments can be classified as political speech which is not clearly illegal.

The Court found that although the case was not about the applicant’s liability, a prima facie examination of the competing interests of the applicants and its users against the rights of the politicians was necessary. Without any balancing between opposing interests, the domestic courts overlooked the importance and function of anonymity as a tool for expressing an opinion. Therefore, the decisions of domestic courts “were not supported by relevant and sufficient reasons to justify the interference” [para. 96].

Absent any actual loss, the Court did not grant any pecuniary damages. However, it granted EUR 17,000 for legal costs.

Partly dissenting opinion of Justice Eicke

Justice Eicke found that the applicant’s claim was not admissible since application of Article 10 to the applicant was an “unnecessary and unwarranted” extension of Article 10, which could ultimately have a negative impact on the victims of abusive posts.  Nevertheless, on merits, he found that the national courts had failed to balance competing interests [p. 28].

He disagreed with the majority to find that the Supreme Court of Austria had rightly balanced competing rights under Article 10.

Contrary to the majority opinion, Justice Eicke found that content moderation by the applicant was an “essential criterion” for the applicability of Article 10 [p. 32]. In his opinion, Article 10 protection should not be extended to “service providers” as defined under the E-Commerce Directive because they do not play an active role in publishing comments.

The judge asserted that “the protection provided by Article 10 is functional not personal”. Thus, the identity of the applicant as a member of the press was not relevant. What matters is a journalistic activity, i.e. it is essential that “the act complained of or the information sought” is related to journalistic activities [p. 34].

Relying on Magyar Helsinki Bizottság v. Hungary, App. No. 18030/11 (February 12, 2016)  he stated that extending Article 10 to service providers poses “a very real risk” since it “will ultimately have to be applied to any ‘bloggers and popular users of the social media’, with the consequent (negative) impact on the ability of victims of abusive posts to seek access to court for the purposes of protecting themselves and their reputation” [p. 34].

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