<\/span><\/h3>\nDelfi AS v. Estonia 2015 (Grand Chamber) s was the first case in which the Court had been called upon to examine a complaint about liability for user-generated comments on an Internet news portal. The applicant company, which runs a news portal run on a commercial basis, complained that it had\u00a0been held liable by the national courts for the offensive comments posted by its readers below one of its online news articles about a ferry company. At the request of the lawyers of the owner of the ferry company, the applicant company removed the offensive comments about six weeks after their publication.<\/p>\n
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It first noted the conflicting realities between the benefits of Internet, notably the unprecedented platform it provided for freedom of expression, and its dangers, namely the possibility of hate speech and speech inciting violence being disseminated worldwide in a matter of seconds and sometimes remaining remain persistently available online. The Court further observed that the unlawful nature of the comments in question was obviously based on the fact that the majority of the comments were, viewed on their face, tantamount to an incitement to hatred or to violence against the owner of the ferry company.<\/p>\n
In cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, the Court considered that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. Based on the concrete assessment of these aspects and taking into account, in particular, the extreme nature of the comments in question, the fact that they had been posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction (320 euro) imposed on the applicant company, the Court found that the Estonian courts\u2019 finding of liability against the applicant company had been a justified and proportionate restriction on the portal\u2019s freedom of expression.<\/p>\n
Magyar Tartalomszolg\u00e1ltat\u00f3k Egyes\u00fclete and Index.hu Zrt v. Hungary \u00a02016 This case concerned the liability of a self-regulatory body of Internet content providers and an Internet news portal for vulgar and offensive online comments posted on their websites following the publication of an opinion criticising the misleading business practices of two real estate websites. The applicants complained about the Hungarian courts\u2019 rulings against them, which had effectively obliged them to moderate the contents of comments made by readers on their websites, arguing that that had gone against the essence of free expression on the Internet.<\/p>\n
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It reiterated in particular that, although not publishers of comments in the traditional sense, Internet news portals had to, in principle, assume duties and responsibilities. However, the Court considered that the Hungarian courts, when deciding on the notion of liability in the applicants\u2019 case, had not carried out a proper balancing exercise between the competing rights involved, namely between the applicants\u2019 right to freedom of expression and the real estate websites\u2019 right to respect for its commercial reputation. Notably, the Hungarian authorities accepted at face value that the comments had been unlawful as being injurious to the reputation of the real estate websites.<\/p>\n
It is to be noted that the applicants\u2019 case was different in some aspects from the Delfi AS v. Estonia case (see above) in which the Court had held that a commercially-run Internet news portal had been liable for the offensive online comments of its readers. The\u00a0 applicants\u2019 case was notably devoid of the pivotal elements in the Delfi AS case of hate speech and incitement to violence. Although offensive and vulgar, the comments in the present case had not constituted clearly unlawful speech. Furthermore, while Index is the owner of a large media outlet which must be regarded as having economic interests, Magyar Tartalomszolg\u00e1ltat\u00f3k Egyes\u00fclete is a non-profit self-regulatory association of Internet service providers, with no known such interests.<\/p>\n
Pihl v. Sweden \u00a02017 (admissibility) The applicant had been the subject of a defamatory online comment, which had been published anonymously on a blog. He made a civil claim against the small non-profit association which ran the blog, claiming that it should be held liable for the third-party comment.<\/p>\n
The Court declared the application inadmissible as being manifestly ill-founded. It noted in particular that, in cases such as this, a balance must be struck between an individual\u2019s right to respect for his private life, and the right to freedom of expression enjoyed by an individual or group running an internet portal. In light of the circumstances of this case, the Court found that national authorities had struck a fair balance when refusing to hold the association liable for the anonymous comment. In particular, this was because: although the comment had been offensive, it had not amounted to hate speech or an incitement to violence; it had been posted on a small blog run by a non-profit association; it had been taken down the day after the applicant had made a complaint; and it had only been on the blog for around nine days.<\/p>\n
Smaji\u0107 v. Bosnia and Herzegovina 2018 (admissibility) concerned the applicant\u2019s conviction for incitement to national, racial and religious hatred, discord or intolerance following a number of posts on an Internet forum describing military action which could be undertaken against Serb villages in the Br\u010dko District in the event of another war. The applicant alleged in particular that he had been convicted for expressing his opinion on a matter of public concern.<\/p>\n
The Court declared the applicant\u2019s complaint under Article 10 (freedom of expression) of the Convention inadmissible as being manifestly ill-founded. It found in particular that the domestic courts had examined the applicant\u2019s case with care, giving sufficient justification for his conviction, namely that he had used highly insulting expressions towards Serbs, thus touching upon the very sensitive matter of ethnic relations in post-conflict Bosnian society. Furthermore, the penalties imposed on him, namely a suspended sentence and a seized computer and laptop, had not been excessive. Therefore, the interference with the applicant\u2019s right to freedom of expression, which had been prescribed by law and had pursued the legitimate aim of protecting the reputation and rights of others, did not disclose any appearance of a violation of Article 10 of the Convention.<\/p>\n
Nix v. Germany (admissibility) \u00a0concerned the applicant\u2019s conviction for posting picture of a Nazi leader and swastika in a blog. The applicant argued that the domestic courts had failed to take into account that his blog post was intended as a protest against school and employment offices\u2019 discrimination against children from a migrant background.<\/p>\n
The Court declared the application inadmissible as being manifestly ill-founded. While accepting that the applicant had not intended to spread totalitarian propaganda, to incite violence, or to utter hate speech, and might have thought he was contributing to a debate of public interest, it considered that the domestic courts could not be reproached for concluding that he had used the picture of the former SS chief Heinrich Himmler with\u00a0the swastika as an \u201ceye-catching\u201d device, which was one of the things the law penalising the use of symbols of unconstitutional organisations had been intended to prevent (the so-called \u201ccommunicative taboo\u201d).<\/p>\n
Domestic case-law was clear that the critical use of such symbols was not enough to exempt someone from criminal liability and that what was required was clear and obvious opposition to Nazi ideology. In the applicant\u2019s case, the Court saw no reason to depart from the domestic courts\u2019 assessment that the applicant had not clearly and obviously rejected Nazi ideology in his blog post. The Court therefore concluded that the domestic authorities had provided relevant and sufficient reasons for interfering with the applicant\u2019s right to freedom of expression and had not gone beyond their room for manoeuvre (\u201cmargin of appreciation\u201d) in the case.<\/p>\n
Kilin v. Russia 2021 case concerned the applicant\u2019s trial and conviction for disseminating extremist materials. The applicant in this case had been accused of posting allegedly racist video and audio files involving neo-Nazis, racial epithets, people of apparently Caucasian descent and calls to extremism on a popular online social network. He complained in particular that his criminal conviction had been in violation of his rights.<\/p>\n
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. In the circumstances of the case, and given the racist nature of the material and the absence of any commentary on such content, it found that the domestic courts had convincingly demonstrated that the impugned material had incited ethnic discord and, foremost, the applicant\u2019s clear intention of bringing about the commission of related acts of hatred or intolerance.\u00a0 Lastly, the nature and severity of the penalties imposed (a suspended eighteen-month term of imprisonment with a similar period of probation and some other requirements) had been proportionate in the specific circumstances.<\/p>\n
Standard Verlagsgesellschaft mbH v. Austria (No. 3) 2021 \u00a0concerned court orders for the applicant media company to reveal the sign-up information of registered users who had posted comments on its website, the website of the newspaper Der Standard. This had followed comments allegedly linking politicians to, among other things, corruption or neo-Nazis, which the applicant company had removed, albeit refusing to reveal the information of the commenters.<\/p>\n
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the domestic courts had overall failed to balance the rights at issue and to give sufficient reasons to justify the interference with the applicant company\u2019s rights. It considered, in particular, that the comments at issue had been<\/p>\n
<\/span>Hate Speech and Private Life of Others<\/span><\/h3>\nKabo\u011flu and Oran v. Turkey \u00a02018 \u00a0concerned newspaper articles containing threats and hate speech against the applicants, two university lecturers, attacking them for the ideas they had presented in a report addressed to the Government concerning questions of minority and cultural rights. The applicants lost their cases before the domestic courts, which took the view that the offending articles fell within legislation protecting freedom of expression. The applicants complained that the national authorities had not protected them from the insults, threats and hate speech directed against them in the press on account of the ideas they had expressed in their report.<\/p>\n
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention in respect of the applicants, finding that the domestic courts had not struck a fair balance between their right to respect for their private life and freedom of the press. It considered, in particular, that the verbal attacks and threats of physical harm made against the applicants sought to undermine their intellectual personality, causing them feelings of fear, anxiety and vulnerability in order to humiliate them and break their will to defend their ideas.<\/p>\n
The Court also found that the domestic courts had not provided a satisfactory answer to the question of whether freedom of the press could justify, in the circumstances of the case, the damage caused to the applicants\u2019 right to respect for their private life by passages amounting to hate speech and incitement to violence, thus being likely to expose them to public contempt.<\/p>\n
Beizaras and Levickas v. Lithuania \u00a02020 The applicants, two young men who were in a relationship, alleged that they had been discriminated against on the grounds of sexual orientation because of the authorities\u2019 refusal to launch a pre-trial investigation into the hate comments on the Facebook page of one of them. The latter had posted a photograph of them kissing on his Facebook page, which led to hundreds of online hate comments. Some were about LGBT people in general, while others personally threatened the applicants. The applicants submitted that\u00a0they had been discriminated against on the grounds of sexual orientation. They also argued that the refusal had left them with no possibility of legal redress.<\/p>\n
The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private life) of the Convention, finding that the applicants had suffered discrimination on the grounds of their sexual orientation and that the Lithuanian Government had not provided any justification showing that the difference in treatment had been compatible with the standards of the Convention. It noted in particular that the applicants\u2019 sexual orientation had played a role in the way they had been treated by the authorities, which had quite clearly expressed disapproval of them so publicly demonstrating their homosexuality when refusing to launch a pre-trial investigation. Such a discriminatory attitude had meant that the applicants had not been protected, as was their right under the criminal law, from undisguised calls for an attack on their physical and mental integrity.<\/p>\n
<\/span>Sexual Identity \/ Orientation<\/span><\/h3>\nLilliendahl v. Iceland 2020 (Admissibility) concerned the applicant\u2019s conviction and fine for homophobic comments he had made in response to an online article. The applicant alleged that his conviction had breached his right to freedom of expression.
\nThe Court held that the applicant\u2019s complaint under Article 10 (freedom of expression) of the Convention was manifestly ill-founded and rejected it as inadmissible. It found that the applicant\u2019s comments had amounted to hate speech within the meaning of its case- law. The Court accepted in particular the Icelandic Supreme Court\u2019s finding that the comments had been \u201cserious, severely hurtful and prejudicial\u201d, and that the decision which had originally sparked the debate, concerning measures to strengthen education in schools on lesbian, gay, bisexual or transgender matters, had not warranted such a severe reaction. The domestic courts\u2019 decisions in the case, taken after an extensive balancing exercise between the applicant\u2019s right to freedom of expression and the rights of gender and sexual minorities, had therefore been reasonable and justified.<\/p>\n
Association ACCEPT and Others v. Romania 2021 concerned the interruption, by a group of about 50 people who entered the venue shouting homophobic remarks, insulting and threatening the participants, of the public screening of a movie portraying a same-sex family, organised by the applicant association and attended by the other applicants. The investigation into the applicants\u2019 criminal complaint, for incitement to discrimination, abuse of office by restriction of rights and the use of fascist, racist or xenophobic symbols in public, was discontinued by the prosecutor and their challenges thereto were unsuccessful.<\/p>\n
The Court held, inter alia, that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private life) of the Convention, in respect of the individual applicants, finding that the Romanian authorities had failed to discharge their positive obligation to investigate in an effective manner whether the verbal abuse directed towards the individual applicants constituted a criminal offence motivated by homophobia. In doing so, the authorities had shown their own bias towards members of the LGBT community.<\/p>\n
The Court reiterated, in particular, that while being careful not to hold that each and every utterance of hate speech must, as such, attract criminal prosecution and criminal sanctions, comments that amounted to hate speech and incitement to violence, and were thus clearly unlawful on the face of things, might in principle require the States to take certain positive measures. Likewise, inciting hatred did not necessarily amount to a call for an act of violence or other criminal acts. Attacks on people committed by insulting, holding up to ridicule or slandering specific groups of the population could be sufficient for the authorities to favour combating racist speech in the form of freedom of expression exercised in an irresponsible manner.<\/p>\n
The Court also emphasised that the necessity of conducting a meaningful inquiry into the possibility that discriminatory motives had lain behind the abuse was absolute, given the hostility against the LGBT community in the respondent State and in the light of the evidence that homophobic slurs had been uttered by the intruders during the incident. In the absence of such an inquiry, prejudice-motivated crimes would inevitably be treated on an equal footing with cases without such overtones, and the resultant indifference would be tantamount to official acquiescence, or even connivance in, hate crimes.<\/p>\n\n
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Revisionism Past\u00f6rs v. Germany concerned the conviction of a Land deputy for denying the Holocaust during a speech in the regional Parliament. The Court declared inadmissible as being manifestly ill-founded the applicant\u2019s complaint under Article 10 (freedom of expression) of the Convention. It noted in particular that the applicant had intentionally stated untruths to defame […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[349],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22781"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=22781"}],"version-history":[{"count":7,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22781\/revisions"}],"predecessor-version":[{"id":23559,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22781\/revisions\/23559"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=22781"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=22781"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=22781"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}