‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 18 June 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 25

This week in Strasbourg:
  • Commercially-run Internet news portal was liable for the offensive online comments of its readers
  • Unfair proceedings but no established pecuniary interest in respect of an indemnity for loss of capacity to work
  • Failure to inform an accused of the right to remain silent and not to incriminate herself did not breach her right to a fair trial as a whole
  • Excluding self-employed farmers from the categories of professions entitled to form trade unions did not breach their freedom of association
  • Azerbaijani refugees’ rights violated by lack of access to their property located in district controlled by Armenia
Commercially-run Internet news portal was liable for the offensive online comments of its readers - Grand Chamber judgment - case of Delfi AS v. Estonia  - no violation of Article 10 (freedom of expression) of the European Convention on Human Rights - This 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, Delfi AS, which runs a news portal run on a commercial basis, complained that it had been 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, Delfi removed the offensive comments about six weeks after their publication.
The case therefore concerned the duties and responsibilities of Internet news portals which provided on a commercial basis a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engaged in clearly unlawful hate speech which infringed the personality rights of others. The Delfi case did not concern other fora on the Internet where third-party comments could be disseminated, for example an Internet discussion forum, a bulletin board or a social media platform.
The question before the Grand Chamber was not whether the freedom of expression of the authors of the comments had been breached but whether holding Delfi liable for comments posted by third parties had been in breach of its freedom to impart information.
The Grand Chamber found that the Estonian courts’ finding of liability against Delfi had been a justified and proportionate restriction on the portal’s freedom of expression, in particular, because: the comments in question had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis; the steps taken by Delfi to remove the offensive comments without delay after their publication had been insufficient; and the 320 euro fine had by no means been excessive for Delfi, one of the largest Internet portals in Estonia.

"39.  If one applies a balancing approach, then the other side of the balance must also be considered. According to the case-law, there must be proper consideration of the following factors, among others:
–  the interference concerns the press and journalism. Delfi pursued journalistic activities, both in providing a news portal and by attaching a comment space to an article. Journalism is not exempt from liability, but it triggers stricter scrutiny. “The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism” (Stoll v. Switzerland [GC], no. 69698/01, § 103, ECHR 2007‑V).[29] There is no consideration of good faith in the judgment. Moreover, when it comes to online journalism and the responsibility of an active intermediary, due consideration must be given to the role of self-regulation of the profession;
–  the Court has held that “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298). The Court has found this to be a relevant principle and we agree that this is of importance for the press, including news portals and active intermediaries. However, this principle is simply not discussed in the judgment;
–  the opening of a comment space provides a forum for the expression of views concerning public matters. As such it contributes to more robust speech, and enables others to receive and impart information that does not depend on centralised media decisions. Any restriction imposed on the means necessarily interferes with the right to receive and impart information (see, for example, Öztürk v. Turkey [GC], no. 22479/93, § 49, ECHR 1999-VI);
–  the debate was about a matter of public interest. The comments related to the highly controversial behaviour of a large corporation.
40.  The Court is reluctant to consider the possibility of less intrusive means, but in our view at least some justification is needed to explain why only the equivalent of prior restraint and absolute liability satisfies the non-specific duties and responsibilities of active intermediaries.

41.  Without speculating on the outcome of the balancing analysis, we note that these considerations have been left out. Where part of the required considerations were not included in the balancing exercise carried out by the domestic court, the Court must find a violation.

42.  We do not intend to close our eyes to the problem of racist speech. The fact that the comment space technically facilitated the dissemination of racism should be part of the proportionality analysis. In fact, the comment space facilitates the dissemination of all views equally. However, we accept, even without specific evidence, that the more comments there are, the higher the likelihood that racist comments are made. We accept this, though only as a hypothesis, as no evidence to this effect was produced in the proceedings, or referred to by the Court.

43.  Even assuming such increased likelihood of racist comments on comment sites (once again, a matter subject to proof), it remains appropriate to consider what is the proper level of care in the face of such risk. Perhaps the filtering mechanism was inadequate to meet this challenge. This was the position taken by the Court, without defining what the appropriate level of care would have been in 2006 in Estonia. We do not know and cannot know. The Court cannot replace the lack of a domestic analysis with its own analysis. Moreover, it is not for the Court to take on the role of national legislation. We cannot rule out that the need to fight racist speech (a matter of public order and not simply a personality right) might dictate a duty of care that would impose duties beyond the measures applied by Delfi. But the task of the Court is to determine whether the interference by the domestic authorities was actually based on proper and credible grounds. These are absent here; hence there was a violation of the Convention."
Lorna Woods, Delfi v Estonia: Curtailing online freedom of expression? - EU Law Analysis:
"Indeed, the view of the portal as having control over user generated content seems to overlook the difficulties of information management. The concurring opinions go to great length to say that a view which requires the portal only to take down manifestly illegal content of its own initiative is different from a system that requires pre-publication review of user generated content. This may be so, but both effectively require monitoring (or an uncanny ability to predict when hate speech will be posted). Indeed, the dissenting judges say that there is little difference here between this requirement and blanket prior restraint (para 35). Both approaches implicitly reject notice and take down systems, which are used – possibly as a result of the e-Commerce Directive framework – by many sites in Europe. This focus on the content has led to reasoning which almost reverses the approach to freedom of expression: speech must be justified to evade liability. In this it seems to give little regard neither to its own case law about political speech, nor its repeated emphasis on the importance of the media in society." 
Dirk Voorhoof, Delfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers - Strasbourg Observers:
"The attention is to be drawn on one of the Grand Chamber’s important considerations that the Delfi case does not concern “other fora on the Internet” where third-party comments can be disseminated, for example an internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channelled by any input from the forum’s manager. The Grand Chamber’s finding is neither applicable to a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby. The Court indeed emphasises very strongly the liability when it concerns a professionally managed internet news portal, run on a commercial basis. There are severe doubts however if this limitation of the impact of the judgment is a pertinent one, reserving the (traditional) high level of freedom of expression and information only for social media, personal blogs and “hobby” (§ 116). It is indeed hard to imagine how this “damage control” will help. As the two dissenting judges observe: “Freedom of expression cannot be a matter of a hobby”.
The Grand Chamber also makes clear that the impugned comments in the present case mainly constituted hate speech and speech that directly advocated acts of violence. Hence, the establishment of their unlawful nature did not require any linguistic or legal analysis by Delfi, since the remarks were on their face manifestly unlawful. According to the Grand Chamber its judgment is not to be understood as imposing a form of “private censorship”. However, the judgment considers interferences and removal taken on initiative of the providers of online platforms as the necessary way to protecting the rights of others, while there are other ways that can achieve the same goal, but with less overbroad (pre-)monitoring of all user generated content or with less collateral damage for freedom of expression and information, such as taking action against the content providers, and effectively install obligations for providers to help to identify the (anonymous) content providers in case of manifest hate speech or other illegal content. Obliging online platforms to filter or monitor users’ comments in order to prevent any possible liability for illegal content creates a new paradigm for participatory online media." 
Neville Cox, Delfi v. Estonia: Privacy Protection and Chilling Effect - Verfassungsblog:
"Finally, the Court (like the first chamber) attached great significance to the fact that what had happened involved publication on the internet which ‘provides an unprecedented platform for the exercise of freedom of expression’ (para 110). It regularly noted, alongside the benefits provided by the internet, that the capacity for instantaneous and global publication had the potential significantly to undermine the rights of privacy and reputation of persons and it implied, strongly, that its judgement simply would not have application where, for example, the print media was concerned. Put simply, the duties and responsibilities attaching to publishers in this context would be unique (para 113). In other words, the decision of the Estonian Supreme Court that the applicants were required to exercise a greater level of control over anonymously posted comments than had heretofore been the case was not a disproportionate interference with their rights under Article 10 having regard to the potential for harm to the rights ad reputations of others flowing from such publications. 

There was, of course, a counter argument to this. The ECHR noted (para 48), but ignored the comment at para 27 of the UNHRC Special Rapporteur inter alia on freedom of expression of May 2011 (A/HRC/17/127) that the internet also provided defamed parties with an instantaneous and global right of reply which must play into the question of whether a sanctions imposed on the ‘defamer’ were necessary or proportionate (see also Para 49 of the ECHR judgement). Thus, it would seem that the decision of the ECHR in this case simply continues a trend evident in other judgements whereby it appears to be viewed as necessary to increase the protections afforded to rights of reputation and privacy generally (and possibly to increase the controls available for grossly unacceptably speech) as a bulwark against the enhanced possibilities for the exercise of freedom of expression de facto provided by the internet." 
Unfair proceedings but no established pecuniary interest in respect of an indemnity for loss of capacity to work - case of Lebedinschi v. the Republic of Moldova - a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights - The case concerned a lack of reasoning in court decisions. After a very serious accident in the course of his duties, leaving him unfit to work, the applicant, Mr Lebedinschi, a deputy police superintendent at the time, claimed an entitlement to a lump-sum indemnity for loss of capacity to work, relying on an exception provided for in the rules. The Court found, in particular, that the question whether Mr Lebedinschi could benefit from an exception applying to contractual staff, thus allowing him to rely on an entitlement to the lump-sum indemnity in question, should have been addressed specifically by the Supreme Court, which had not responded to the argument. The Court held that the proceedings had not therefore been fair. However, it did not find that the applicant’s pecuniary interest had been sufficiently established such as to require payment of the indemnity.

Failure to inform an accused of the right to remain silent and not to incriminate herself did not breach her right to a fair trial as a whole - case of Schmid-Laffer v. Switzerland - no violation of Article 6 (right to a fair trial) of the European Convention on Human Rights - The case concerned Ms Schmid-Laffer’s conviction and prison sentence for attempted premeditated murder, putting a person’s life in danger and bringing false accusations. The Court found in particular that while the police interview that had taken place the day after the events might have undermined the fairness of the subsequent proceedings and that although the police should have informed Ms Schmid-Laffer of her rights not to incriminate herself and to remain silent, she had not, however, been convicted solely on the basis of the information obtained during that interview, and the proceedings as a whole had not been unfair.

Excluding self-employed farmers from the categories of professions entitled to form trade unions did not breach their freedom of association - case of Manole and “Romanian Farmers Direct” v. Romania - No violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights - The case concerned the refusal to register the union of self-employed farmers which Mr Manole wished to set up. The Court, taking into consideration the relevant international instruments in this sphere and in particular the Conventions of the International Labour Organisation, found that under the Romanian legislation farmers’ organisations enjoyed essential rights enabling them to defend their members’ interests in dealings with the public authorities, without needing to be established as trade unions. In agriculture as in the other sectors of the economy, that form of association was now reserved solely for employees and members of cooperatives. The Court held that the refusal to register the applicant union had not overstepped the Romanian authorities’ margin of appreciation as to the manner in which they secured the right of freedom of association to self-employed farmers.

Azerbaijani refugees’ rights violated by lack of access to their property located in district controlled by Armenia - Grand Chamber judgment - case of Chiragov and Others v. Armenia a continuing violation of Article 1 of Protocol No. 1 (protection of property), a continuing violation of Article 8 (right to respect for private and family life) and a continuing violation of Article 13 (right to an effective remedy) of the Convention.
The case concerned the complaints by six Azerbaijani refugees that they were unable to return to their homes and property in the district of Lachin, in Azerbaijan, from where they had been forced to flee in 1992 during the Armenian-Azerbaijani conflict over Nagorno-Karabakh. There are currently more than one thousand individual applications pending before the Court which were lodged by persons displaced during the conflict over Nagorno-Karabakh. In the applicants’ case, the Court confirmed that Armenia exercised effective control over Nagorno- Karabakh and the surrounding territories and thus had jurisdiction over the district of Lachin. The Court considered that there was no justification for denying the applicants access to their property without providing them with compensation. The fact that peace negotiations were ongoing did not free the Government from their duty to take other measures. What was called for was a property claims mechanism which would be easily accessible to allow the applicants and others in their situation to have their property rights restored and to obtain compensation.

Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments. 

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