Last Updated on December 7, 2021 by LawEuro
Information Note on the Court’s case-law 257
December 2021
Standard Verlagsgesellschaft mbH v. Austria – 39378/15
Judgment 7.12.2021 [Section IV]
Article 10
Article 10-1
Freedom of expression
Unjustified court orders against media company to disclose data of authors of offensive comments posted on its internet news portal as part of a political debate: violation
Facts – The applicant is a limited liability company which owns and publishes a daily newspaper published in print format, in digital format (as an “e-paper”) and in an online version. Its online news portal carries articles assigned to it by the editorial office and discussion forums relating to those articles on which registered users are allowed to post comments. Following the posting of offensive comments under two articles the applicant company had published on its portal regarding two politicians and a political party, it was ordered, in two sets of proceedings on appeal, to disclose the data of the comments’ authors. The domestic courts refused to consider the latter as journalistic sources. The applicant company complained that this had infringed its Article 10 right to freedom of expression.
Law – Article 10: At the outset, the Court noted that the case concerned the applicant company’s duty as a host provider to disclose user data in certain circumstances and not its own liability for the users’ comments.
(a) Existence of an interference – The applicant company, in its role as an editor of journalistic work, used the discussion forums on its news portal to participate in the dissemination of ideas with regard to topics of public interest, as protected by freedom of the press. As the comments posted on the forum by readers of the news portal were clearly addressed to the public rather than to a journalist, they could not be considered a journalistic source. The applicant company could not thus rely on editorial confidentiality. However, an interference with Article 10 could also occur in ways other than by ordering the disclosure of a journalistic source. The question of whether there might be an interference also did not depend on the legal categorisation of a provider by the domestic courts but rather on the circumstances of the case as a whole. In the present case, the applicant company’s role and interlinked activities as a media company extended beyond being a host provider; it also published a daily newspaper and maintained a news portal which provided a forum for users. It took an active role in guiding users to write comments which it described as an essential and valuable part of the news portal. User-generated content on its portal was at least partly moderated. It was thus apparent that the applicant company’s overall function was to further open discussion and to disseminate ideas with regard to topics of public interest as protected by freedom of the press. An obligation to disclose the data of authors of online comments could deter them from contributing to debate, leading therefore to a chilling effect among users posting in forums in general, and affecting, indirectly, also the applicant company’s right to freedom of press.
The applicant company, had awarded its users a certain degree of anonymity not only in order to protect its freedom of the press but also to protect users’ private sphere and freedom of expression – rights all protected by Articles 8 and 10 of the Convention. This anonymity would not be effective if the applicant company could not defend it by its own means. It would be difficult for users to defend their anonymity themselves should their identities have been disclosed to the civil courts. The interference lay thus in the lifting of anonymity and the effects thereof, irrespective of the outcome of any subsequent proceedings as to the content of the comments. Consequently, the domestic courts’ orders to disclose the requested user data constituted an interference with the applicant company’s right to enjoy freedom of the press.
(b) Whether the interference was justified – It had not been disputed between the parties that the interference had been prescribed by law and that it had served the legitimate aim of the protecting the reputation and rights of others. The Court, however, found that the interference had not been necessary in a democratic society.
There was no absolute right to anonymity. And anonymity on the Internet, although an important value, had to be balanced against other rights and interests. The importance of a sufficient balancing of interests arose from this awareness, in particular, if political speech and debates of public interest were concerned. This issue was not only reflected in the Court’s longstanding case-law but also in international-law material concerning Internet intermediaries according to which the disclosure of user data had to be necessary and proportionate to the legitimate aim pursued. A potential victim of a defamatory statement had to be awarded effective access to a court in order to assert his or her claims before that court. The domestic courts, before deciding whether the data relating to the author’s identity should be disclosed, would have to weigh – in accordance with their positive obligations under Articles 8 and 10 of the Convention – conflicting interests at stake. In the instant case, those interests comprised the plaintiffs’ right to protect their reputation and the applicant company’s right to freedom of press as well as its role in protecting the personal data of the comment’s authors and the freedom to express their opinions publicly.
In the Court’s view, the impugned interference in the instant case (duty to disclose user data) would weigh less heavily in the proportionality assessment than the interference in a case where a media company was held liable, under civil or criminal law, for the content of a particular comment by being fined or obliged to delete it. Consequently, the Court accepted that for a balancing exercise in proceedings concerning the disclosure of user data, a prima facie examination might suffice, and that domestic courts enjoyed a certain margin of appreciation, even if it was narrow when political speech was concerned. Still, even a prima facie examination required some reasoning and balancing.
The comments made about the plaintiffs, although seriously offensive, had not amounted to hate speech or incitement to violence, nor had they been otherwise clearly unlawful. They had been expressed in the context of a public debate on issues of legitimate public interest, namely the conduct of the politicians in question acting in their public capacities and their own comments published on the same news portal. Since such comments could be characterised as political speech, it was of particular concern that the appeal courts and the Supreme Court had not conducted any balancing exercise. Referring to the Supreme Court’s case-law, which in fact did not preclude a balancing of interests, they had considered that such a balancing should be carried out during proceedings against the author of the allegedly defamatory comments and not in those against the relevant service provider. The lack of any such balancing had overlooked the function of anonymity as a means of avoiding reprisals or unwanted attention and thus the role of anonymity in promoting the free flow of opinions, ideas and information. Accordingly, in the absence of the requisite balancing the decisions of the appeal courts and of the Supreme Court had not been supported by relevant and sufficient reasons to justify the interference.
Conclusion: violation (unanimously)
Article 41: given the circumstances of the case the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage the applicant company might have sustained. Claim in respect of pecuniary damage dismissed.
(See also Sanoma Uitgevers B.V. v. the Netherlands [GC], 38224/03, 14 September 2010, Legal Summary; Delfi AS v. Estonia [GC], 64569/09, 16 June 2015, Legal Summary; Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, 22947/13, 2 February 2016, Legal Summary)
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