Pihl v. Sweden: non-profit blog operator is not liable for defamatory users’ comments in case of prompt removal upon notice

by Dirk Voorhoof

In its decision of 9 March 2017 in Rolf Anders Daniel Pihl v. Sweden, the ECtHR has clarified the limited liability of operators of websites or online platforms containing defamatory user-generated content. The Court’s decision is also to be situated in the current discussion on how to  prevent or react on  “fake news”, and the policy to involve online platforms in terms of liability for posting such messages. Although the Court’s ruling expresses concerns about imposing liability on internet intermediaries that would amount to requiring excessive and impractical forethought capable of undermining the right to impart information via internet, the decision in Pihl v. Sweden itself guarantees only minimal protection for the rights of internet intermediaries and users’ rights.

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Between a Rock and a Hard Place: The Court’s Difficult Choice in Khamtokhu and Aksenchik v. Russia

Is it permissible for States to categorically exempt women, juveniles and the elderly from being sentenced to life in prison? How should the Court handle the threat that States will ‘level down’ protection after it finds that a given measure is discriminatory? Those were the questions facing the Court’s Grand Chamber as it reached its judgment in Khamtokhu and Aksenchik v. Russia, issued on January 24th. The case concerned the alleged discrimination inherent in the fact that life imprisonment in the respondent State can only be imposed on men between the ages of 18 and 65. The Grand Chamber was divided, and ultimately found no violation of the Convention in the case. When reading the judgment and separate opinions, it emerges that the Court failed to find that gender discrimination had taken place for a very specific reason: doing so would have brought about the (re-)introduction of life imprisonment for the excepted groups. Continue reading

The Best and Worst ECtHR judgments of 2016 are…

Dear readers,

We are happy to announce the results of our poll on the best and worst ECtHR judgment of 2016. For an overview of the shortlist of candidates, including a motivation for selecting them, see our previous blog post published on the occasion of the opening of the polls.

In light of the recent Oscars ceremony fiasco, we have made sure to double-check all votes. In the category of best judgment, the winner is… Continue reading

Protest as you like it: time, place & manner restrictions under scrutiny in Lashmankin v. Russia

Guest post by Daniel Simons, Legal Officer for Freedom of Assembly, Expression and Information, Open Society Justice Initiative (New York)

The unanimous Chamber judgment in Lashmankin and Others v. Russia, rendered on February 7th, is an important new star in the Article 11 firmament. It clarifies the law peaceful assemblies in a number of respects, in particular the degree to which authorities may impose time, place and manner restrictions on individual protests, or place blanket bans on demonstrations in specific locations.

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Selmani and Ors v. FYROM: influential judgment on press galleries and parliamentary reporting

Guest post by Jonathan McCully, Legal officer at the Media Legal Defence Initiative, which supported the case, and Editor of Columbia Global Freedom of Expression

On 9 February 2017, the European Court of Human Rights handed down an important judgment in Selmani and Ors v. The Former Yugoslav Republic of Macedonia (Application No. 67259/14), a case that considers the forcible removal of journalists from a parliamentary press gallery. The Court’s finding that the removal was a violation of the right to freedom of expression is a valuable pronouncement in a global context where a number of states have used similar measures to suppress reporting on parliamentary affairs.

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The Unbreakable Vow: Marital Captivity in Strasbourg

By Corina Heri, Visiting Scholar at Ghent University           

It has been the ECtHR’s constant case-law that Article 12 ECHR, while enshrining the right to marry an opposite-sex spouse, does not protect a right to divorce. The fact that the Court has resolutely held on to that idea despite the modern-day legalization of divorce in the Council of Europe Member States has been brought to the fore once again with the Fourth Section’s judgment in Babiarz v. Poland, issued on 10 January 2017. That case, brought under Articles 8 and 12 ECHR, concerned the applicant’s inability to obtain a divorce from his wife without her consent, as a result of which he could not marry the mother of his child. In short, Polish law gave higher priority to the legal fiction of an ongoing relationship between the spouses than to the de facto relationship between the applicant and his new partner, which had been ongoing for 11 years at the time of the Court’s judgment. The majority, in its judgment, found no violation of the ECHR. The present post will summarize the salient arguments made by the two dissenters, Judge Sajó and Judge Pinto de Albuquerque, and add some critiques of its own.

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J. and Others v. Austria and the Strengthening of States’ Obligation to Identify Victims of Human Trafficking

Guest post by Dr. Vladislava Stoyanova, Lecturer and Postdoctoral Fellow, Faculty of Law, Lund University, Sweden (*)

J. and Others v. Austria delivered by the Strasbourg Court on 17 January 2017 adds to the slowly developing body of case law under Article 4 of the ECHR (the right not to be subjected to slavery, servitude and forced labour). For an overview of relevant judgments see my previous post here.[1] Although the Court did not find that Austria was in breach of its procedural obligation under Article 4 (the obligation to investigate), I would like to draw attention to some important pronouncements in the judgments that might hold essential potential in relation to the obligation upon states to identify victims of human trafficking. I would like to also draw attention to the poor engagement by the Court with the definitional challenges raised by Article 4, a deficiency that can be traced back to Rantsev v. Cyprus and Russia.[2]

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