ECtHR: Imposing Strict Liability for User Comments is Compatible with Freedom of Expression
Hutko
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- No Comment
In the spirit of the judgement, therefore I only reproduce below those passages that I found telling.
On this basis, and having regard to the freedom to impart information as enshrined in Article 10, the Court will thus proceed on the assumption that the Supreme Court’s judgment must be understood to mean that the subsequent removal of the comments by the applicant company, without delay after publication [not notification], would have sufficed for it to escape liability under domestic law. Consequently, and taking account of the above findings (see paragraph 145) to the effect that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal, the Court does not consider that the imposition on the applicant company of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, and were thus clearly unlawful on their face, amounted, in principle, to a disproportionate interference with its freedom of expression. [§ 153]The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments. [§ 158]
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 [after their publication, not notification], even without notice from the alleged victim or from third parties [Yes, this means that imposing strict liability on printers for content of books also appears just fine]. [§ 159]
The duty to remove offensive comments without actual knowledge of their existence and immediately after they are published means that the active intermediary has to provide supervision 24/7. For all practical purposes, this is absolute and strict liability, which is in no sense different from blanket prior restraint. No reasons are given as to why only this level of liability satisfies the protection of the relevant interests. [§ 35]
