Judgement 4222/18

plicant name ZÖCHLING
Applicant type Natural person
Number of applicants 1
Country Austria
Application no. 4222/18
Date 05/09/2023
Judges  Faris Vehabović, President,
 Iulia Antoanella Motoc,
 Branko Lubarda,
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason No adequate balancing national court (necessity; rights and freedoms of others)
Type of privacy Procedural privacy; informational privacy
Keywords Publication defamatory user comments on internet site
Facts of the caseThe applicant is a journalist working for a well-known weekly news magazine. Medienvielfalt Verlags GmbH is the publisher of an Internet news portal where on average six to ten articles a day are published by journalists who work on a voluntary basis. The portal allows users registered with an email address to post comments relating to articles published by the company without the content of the comments being checked before or after their publication. Users are given notice that unlawful comments are undesirable. The comments are technically cleared for publication by an employee and are visible on the portal under the relevant article. In 2016, the company published an article about the applicant along with an image. Subsequently, a user posted that he had printed out the applicant’s image and had successfully shot her in the face and encouraged others to do the same. Another user called the applicant a “plague”, a “dumb person” and a “larva” and stated that he regretted that gas chambers no longer existed. The applicant asked the company to delete the comments and to disclose the users’ data. The company did both and the users in question were blocked. The applicant, however, subsequently failed to obtain the names and postal addresses of the users because their email providers refused to share those data. Although  subsequently, a court concluded that the company had not fulfilled the requirements for exemption from liability set out in the Austrian Media Act, which is stricter than the EU’s e-Commerce regime, the Court of Appeal quashed that decision, referring both to the e-Commerce Directive, the ECtHR’s ruling in Delfi and Article 10 ECHR.
AnalysisThe ECtHR, reiterates that when balancing Article 8 and 10 ECHR and for the assessment of liability for third-party comments on the Internet, there are several criteria: (1) the context of the comments, (2) the measures applied by the company in order to prevent or remove defamatory comments, (3) the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and (4) the consequences of the domestic proceedings for the company.
(1) The Court finds the company’s portal was not one of the largest news portals in Austria, unlike the portal in Estonia in the case of Delfi, but that the court of appeal did not examine the size of the portal or the extent of the company’s commercial interest in the posting of the comments, nor did it consider the court of first instance’s finding that the comments were based on intentionally stirred up antipathies against the applicant, nor did not refer to the content of the comments either although they clearly amounted to hate speech and contained incitements to violence.
(2) Although the comments in issue were deleted after having been notified to the company by the applicant, a minimum degree of subsequent moderation or automatic filtering would be desirable in order to identify clearly unlawful comments as quickly as possible and to ensure their deletion within a reasonable time. The ECtHR points out that the court of appeal did not consider possible measures to be applied by the company to prevent defamatory content on its portal or to remove such content, nor did it take into account the court in first instance’s finding that offensive comments about the applicant had repeatedly been posted under articles published on the company’s portal since 2015 so that the company could have anticipated further offences, nor did it assess whether informing users that unlawful comments were merely “undesirable” rather than could be regarded hate speech would have been an effective measure.
(3) The applicant was refused access to the author’s data by their email providers.
(4) No sanction was imposed, thus no consequences for the company.
Notwithstanding the Austrian Media Act and the EU’s e-Commerce Directive, the ECtHR finds that the court of appeal did not adequately apply the four criteria of the Delfi case and did not adequately balance the interest at stake. It is interesting how quickly the ECtHR arrives at this conclusion, how far the ECtHR’s approach seems removed from the EU’s e-Commerce Directive, and its successor, the Digital Services Act, and how little attention is paid to the responsibility and liability of the authors of the comments and of the e-mail providers that refused to disclose the names of the authors of the comments.
The applicant claimed 7,782.70 euros (EUR) in respect of pecuniary and non-pecuniary damage. The Court, however, reiterates that it cannot speculate as to what the outcome of proceedings would have been if they had been in conformity with the procedural requirements implicit in Article 8 ECHR. Accordingly, it does not discern any causal link between the violation found and the pecuniary damage alleged and rejects this claim., although it does award the applicant EUR 2,000 in respect of non-pecuniary damage.
Other Article violation?
Damage awarded i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,800 (five thousand eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
Documents Judgment