ECHR back on intermediaries liability after Delfi case


The Court considers that the rigid stance of the Hungarian courts reflects a notion of liability which effectively precludes the balancing between the competing rights according to the criteria laid down in the Court’s case law (see Von Hannover (no. 2), cited above, § 107).

At this juncture, the Court reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland, cited above, § 67).

However, in the case of Delfi AS, the Court found that if accompanied by effective procedures allowing for rapid response, the notice-and-take-down-system could function in many cases as an appropriate tool for balancing the rights and interests of all those involved. The Court sees no reason to hold that such a system could not have provided a viable avenue to protect the commercial reputation of the plaintiff. It is true that, in cases where third-party user comments take the form of hate speech and direct threats to the physical integrity of individuals, the rights and interests of others and of the society as a whole might entitle Contracting States to impose liability on Internet news portals if they failed to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties (see Delfi AS, cited above, § 159). However, the present case did not involve such utterances.  The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 10 of the Convention. Here to read the decision.

Share this article!

About Author

Leave A Reply