Case Summary and Outcome

The Fourth Section of the European Court of Human Rights held that Austria violated Article 8 by not properly balancing the right to privacy with the freedom of expression. The case involved a journalist, Zöchling, who encountered defamatory comments on an Internet news portal operated by Medienvielfalt Verlags GmbH. Despite the portal’s relatively small size, the ECtHR found that the Court of Appeal failed to adequately assess the context, size, commercial interest, and content of the offensive comments. The ECtHR criticized the lack of consideration for measures to prevent defamatory content, such as a notice-and-take-down system, and emphasized the importance of anticipating further offenses, especially in cases involving hate speech. Furthermore, the ECtHR highlighted the Court of Appeal’s neglect in evaluating the effectiveness of informing users that unlawful comments were “undesirable.” The denial of access to authors’ data further underscored the need for a proper balancing exercise, which the Court of Appeal failed to conduct. Consequently, the ECtHR ruled a violation of Article 8, emphasizing the State’s positive obligation to safeguard the applicant’s rights to privacy and reputation.

Facts

The Applicant, Zöchling, is a journalist working for a renowned news magazine. Medienvielfalt Verlags GmbH is the publisher of an Internet news portal wherein journalists work voluntarily, publishing around six to ten articles a day. The news portal allows the readers to comment via a registered email address with a notice that “unlawful comments are undesirable” however, the comments are published without any review. [para. 1-3]

On September 11, 2016, Medienvielfalt Verlags GmbH published an article about the Applicant on the portal along with an image of her. One of the users commented on the article that he printed out a picture of the Applicant and shot her in the face, and encouraged others to do the same. Other users also commented on the Applicant, calling her “plague”, “dumb person”, and “larva” and one even mentioned that they regretted that gas chambers don’t exist anymore (a reference to the Holocaust). [para. 4]

On September 13, 2016,  the Applicant asked Mediavielfalt Verlags GmbH to delete the comments and to disclose the users’ data. The comments were deleted and the user who posted the comments was blocked by the Medienvielfalt Verlags GmbH. [para. 5]

Upon failure to receive information about the users, the Applicant filed an Application before the Vienna Regional Criminal Court against the Mediavielfalt Verlags GmbH under Section 6 § 1 of the Media Act, claiming damages for the publication of insulting statements. The Vienna Regional Criminal Court ruled in favor of the Applicant, noting that while section 6 § 2.3a of the Media Act provided media owners with exemption from liability for website content, this exemption required the fulfillment of due diligence obligations. The Court distinguished between the wider obligations of due diligence under the Media Act and the narrower obligations under Section 16 of the E-Commerce Act. Despite the company promptly removing the offensive comments upon notification, the Court determined that considering factors such as the intentional stirring of antipathies against the Applicant, the content of the article, and the history of offensive comments, the Company had not met the due diligence requirements for exemption from liability under Section 6 § 2.3a of the Media Act. [para. 6]

On July 20, 2017, the Court of Appeal overturned the Regional Criminal Court’s decision, stating that under Section 6 § 2.3a of the Media Act, media owners were obligated to delete statements promptly if they became aware of their offense. The Court highlighted that media owners were not required to monitor all comments, as it would violate the E-Commerce Act. The Court of Appeal referred to Article 10 of the Convention and the Delfi AS v. Estonia, (2013) and determined that the company acted with due diligence by swiftly removing the contested comments upon the applicant’s request. Consequently, the Court of Appeal held that Mediavielfalt Verlags GmbH was not liable for damages under section 6 § 1 of the Media Act. [para. 7] 

The Applicant filed a complaint under Article 8 of the European Convention, alleging that the State failed in its positive obligation to protect her private life and reputation by rejecting her claims. [para. 8]

Decision Overview

Justice Faris Vehabović, Justice Iulia Antoanella Motoc, and Justice Branko Lubarda delivered a unanimous judgment. The primary issue before the Court was to determine whether the State violated the Applicant’s right to privacy while balancing the freedom of expression under Article 10.

The Court referred to the case of Delfi AS to reiterate the general principles concerning competing interests under Article 8 and Article 10 of the Convention. The Court referred to Sanchez v. France, (2023) to identify the criteria for the assessment of liability for third-party comments on the Internet. These criteria include the context of the comments, measures taken by the company to prevent or remove defamatory content, the liability of the actual authors as an alternative to intermediary liability, and the consequences of domestic proceedings for the company. The Court underscored the importance of striking a fair balance between the right to private life and freedom of expression. It noted that the nature of the comment, whether it amounts to hate speech or incitement to violence, is crucial in this balance. [para. 10] 

The Court noted the State’s contention, where the State explicitly listed criteria established in Delfi AS and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, (2016). The State contended that the Court of Appeal balanced the interests fairly, giving priority to those protected by Article 10 (freedom of expression). However, the ECtHR disagreed with this conclusion. 

Concerning the context of the comments under consideration, the Court acknowledged that Medienvielfalt Verlags GmbH’s portal was not among the largest news portals in Austria, distinguishing it from a precedent involving Delfi AS in Estonia. The ECtHR noted that while the Court of Appeal recognized the need to assess the media owner’s obligations, including conduct and the organization of the news portal, it failed to delve into the portal’s size or the company’s commercial interest in the comments. The Court of Appeal also did not consider the Regional Criminal Court’s determination that the article’s underlying the comments “intentionally stirred up antipathies” against the applicant. Furthermore, the ECtHR held that despite the comments being identified as hate speech and containing incitements to violence, the Court of Appeal did not address their content. This is in contrast to other cases where comments were deemed not to amount to hate speech. Therefore, the ECtHR held the Court of Appeal failed to assess the context, size, commercial interest, and content of the comments. [Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (2016); Sanchez, (2017); Pihl v. Sweden, (2017) and Høiness v. Norway, (2019)] [para. 12]

On the issue of measures applied by the company to prevent or remove defamatory content, the ECtHR noted that the contested comments were removed upon notification by the applicant. However, it criticized the Court of Appeal for not examining the potential implementation of a notice-and-take-down system, a mechanism considered valuable in balancing the rights and interests of all parties involved, as established in the Delfi AS case. The Court emphasized that when third-party comments involve hate speech and direct threats, States may impose liability on Internet news portals even without prompt notification from victims or third parties. It cited the recent Grand Chamber judgment in Sanchez, where the ECtHR stressed the desirability of a minimum degree of subsequent moderation or automatic filtering to promptly identify and delete unlawful comments, even in the absence of a notification by the injured party. The Court criticized the Court of Appeal for not considering measures the company could have taken to prevent defamatory content, overlooking the Regional Criminal Court’s finding that offensive comments had been consistently posted on the company’s portal since 2015, indicating a potential need for anticipation of further offenses. Furthermore, the ECtHR held that the Court of Appeal did not assess the effectiveness of informing users that unlawful comments were merely “undesirable” rather than explicitly prohibited in preventing hate speech. [para. 13]

In addressing the potential for the applicant to pursue claims against the anonymous authors of defamatory comments, the Court established that the Applicant was denied access to the authors’ data by their email providers.  The ECtHR held that, notwithstanding the legal provisions exempting host providers from responsibility for third-party information and excluding a general obligation to monitor stored data, the Media Act necessitates a balance between the interests of an applicant seeking damages and a media owner protecting rights under Article 10. The Court noted that the State had acknowledged the need for such a balancing exercise, citing the Delfi AS case, but the Court of Appeal failed to apply relevant criteria. Consequently, the Court concluded that the Court of Appeal, by not conducting a proper balancing of competing interests, did not fulfill its procedural obligations to safeguard the applicant’s rights to privacy and reputation. Thus, there was a violation of Article 8 of the Convention. [para. 14-17]

The Court, recognizing the impossibility of speculating on the outcome had proceedings adhered to Article 6 § 1 of the Convention, dismissed the applicant’s pecuniary damage claim, citing a lack of identifiable causation between the procedural violation and financial harm. However, the Court granted EUR 2,000 for non-pecuniary damage, plus potential taxes. In addressing costs and expenses, the Court adheres to its precedent, awarding reimbursement only for genuinely incurred, necessary, and reasonable costs. After evaluating available documents, the Court deemed EUR 3,800 appropriate for costs in the domestic proceedings and EUR 2,000 for the Court proceedings, in addition to potential taxes. [para. 18-21]