January 25, 2022
By Meri Baghdasaryan
Standard Verlagsgesellschaft MBH v. Austria (No. 3) represents an interesting development in the case law of the European Court of Human Rights (‘ECtHR’, ‘the Court’) on user-generated content and anonymous speech online. This case stands out as it concerns the liability of host providers for refusal to disclose anonymous user data for allegedly defamatory comments.
The applicant, a media company running an online news portal, refused to comply with a domestic court order, obliging it to disclose user data of the anonymous commenters under its articles concerning two politicians and a political party. The ECtHR found a violation of the applicant’s right to enjoy freedom of the press under Article 10 of the Convention. The Court held that domestic courts did not take into account the function and role of anonymous speech in fostering the free flow of ideas, opinions and information, particularly when the speech concerns a political debate. Moreover, the Court expanded the Article 10 protection to host providers that are also media outlets. Nonetheless, this expansion raises the central question of whether these protections would apply to other host providers that attempt to balance the right to anonymous speech online with other legitimate interests.
The applicant, a limited liability company based in Vienna, Austria, owns and publishes a daily newspaper in print, digital and online versions. The online news portal offers a discussion forum at the end of each article. The comments left by users in such forum are filtered by a software based on a list of keywords, followed by a manual review, subject to the company’s Community Guidelines. To leave a comment, a user should register on the portal, accept the applicant company’s general terms and conditions, submit their name, surname and email address (user data), and provide, optionally, a postal address. User data is not public. However, according to the Community Guidelines, the applicant will disclose the user data if required to do so by law.
The comments at issue in this case concerned two articles. The first article, entitled ‘[S.] Brothers take action against forum users’, related to K.S., who at that time was a leader of FPK, a right-wing regional political party. In this article that attracted 1,600 comments, K.S. referred to the people who allegedly had attacked him in the forums as ‘down-at-heel guys who sound off’. The second article was an interview with H.K., a member of the Austrian national assembly and the general secretary of the right-wing Austrian Freedom Party.
K.S. and FPK asked the applicant to provide the user data of two commenters, and H.K. asked for the user data of one commenter who left allegedly defamatory and insulting comments under the corresponding articles. H.K. also asked the applicant to delete the comments at issue. The applicant deleted the corresponding comments but refused to hand over the user data. Subsequently, K.S, FPK and H.K. instituted civil proceedings against the applicant, alleging that the user data in question was needed to lodge lawsuits against the defamatory and insulting commenters at issue. The applicant argued before the domestic courts that the comments were not defamatory, but represented value judgments, and highlighted the fact that the plaintiffs were all politicians, subject to wider criticism than private individuals. Moreover, it stipulated that it was entitled to refuse to disclose user data under the principle of editorial confidentiality.
The courts dismissed both actions, noting that the limits of acceptable criticism for politicians were wider than those of private individuals. After examining the context and content of the comments, the courts concluded that the plaintiffs did not establish that the comments were defamatory, and consequently, the disclosure requirements under section 18 (4) of the EU E-Commerce Directive were not triggered. However, both judgments were reversed on appeal, and the applicant was ordered to disclose the user data at issue and pay the plaintiffs’ costs incurred during the proceedings, as the comments were deemed defamatory. Moreover, the Court of Appeals found that the applicant was not entitled to editorial confidentiality for its sources, as it was unclear whether the user data was subjected to any review to trigger the principle at stake. The applicant’s appeals were unsuccessful, as in both cases the Supreme Court upheld the judgments of the Court of Appeals, finding no unlawful interference with the applicant’s right to enjoy freedom of press.
At the outset, the ECtHR stated that the case at hand was not about the applicant’s liability for user-generated content, but about the applicant’s duty as a host provider to disclose user data under specific circumstances. The ECtHR acknowledged that although the applicant company disseminated ideas in its articles and provided a forum for discussions on topics of public interest, in the instant case the applicant was deemed to be a host provider under domestic legal categorization. Regardless of this legal classification, the Court considered the circumstances in the case as a whole.
Underlining that there is no absolute right to anonymity online, the Court noted that different degrees of anonymity are possible on the Internet. However, the Court held that in the present case the applicant company provided its users with anonymity to not only protect its freedom of press, but also users’ private life and freedom of expression. The Court highlighted that anonymity would be meaningless ‘if the applicant company could not defend it by its own means’ (§78). Therefore, the Court found that there was an interference with the applicant company’s rights under Article 10 of the Convention, when it was required to disclose the user data at issue.
Further, as the parties did not dispute that the interference was prescribed by law and it served the legitimate aim of protection of reputation and rights of others, the Court turned to the ‘necessary in a democratic society’ prong. The ECtHR held that the domestic courts did not conduct sufficient balancing when ordering the applicant to disclose the requested user data. The Court observed that the comments at stake were part of a political debate, posted under articles concerning two politicians and a political party. It was unclear how the interests of the plaintiffs overrode the interests of the commenters and the applicant company to protect the authors of the comments. In fact, as the articles concerned politicians and political parties, the domestic courts enjoyed a narrower margin of appreciation, based on settled case-law (See e.g., Ceylan v. Turkey [GC], § 34, Lingens v. Austria, §42).
While the case was about the disclosure of data, and prima facie evidence was sufficient, some reasoning and balancing was still required. In the instant case, the Court concluded that domestic courts ‘overlooked the function of anonymity as a means of avoiding reprisals or unwanted attention and thus the role of anonymity in promoting the free flow of opinions, ideas and information’, when they did not provide sufficient reasons for the order to disclose user data (§95). Thus, the Court found a violation of the applicant company’s rights under Article 10 of the Convention.
The Court was not unanimous. In his partly dissenting opinion, Judge Eicke challenged the majority conclusion that there was an interference with the applicant company’s rights. He argued that the majority unnecessarily extended the Article 10 protections to the applicant host provider. In his perspective, while the applicant is also a media company, there was no evidence in the case that it played an active role to have knowledge or control over the comments at stake. Moreover, neither the attitude of the authors of the comments was taken into account, nor the applicant company claimed that it was acting on behalf of or for the users at issue. Hence, in the absence of any evidence of journalistic activity, Judge Eicke found that there was no interference with the applicant’s Article 10 rights. At the same time, he agreed with the majority that if there was an interference with Article 10, the domestic courts fell short in balancing the interests at hand.
While it appears that the majority decided to take the opportunity to discuss anonymity online, as the case raised ‘serious issues of fact and law under the Convention’ (§52), and provide a new ground for protection, the basis for such a protection seems to be shaky and unclear.
Dissenting Judge Eicke was correct in highlighting that the applicant company did not put forward the arguments for anonymous speech online on behalf of the users at issue. The applicant’s argument was that as a media outlet it performed enough moderation to warrant the application of the principle of editorial confidentiality. However, as the majority noted, the comments at stake, while representing opinions and potentially qualifying under the definition of ‘journalistic source’, were addressing the public, not the applicant company or its journalists. Consequently, this case was not about protection of journalistic sources.
Instead, the Court looked at the circumstances of the case as a whole to find an interference with Article 10 rights. Despite the fact that the applicant had a domestic legal categorization of a host provider, the majority highlighted that there was a link between providing at least partial moderation for activities on applicant’s portal section and applicant’s media activities in form of publishing articles (§73). In other words, the Court did not treat the applicant’s domestic legal categorization as a host provider to be conclusive, and it seems that taking into account the journalistic nature of applicant company’s main activities, the Court created a new ‘hybrid’ category for host providers that conduct journalistic activities, in addition to providing a moderated forum for public comments.
Some aspects of the case at hand appear to be similar to Delfi AS v. Estonia, where the applicant also was a news portal, publishing articles and providing a comments section for public discussions. However, in Delfi the plaintiff went after the news portal for allegedly defamatory comments, rather than requested user data of anonymous commenters.
At the same time, in Delfi, the Grand Chamber included a disclaimer that the judgment did not concern any hosting that does not provide any content, such as social media companies, or private bloggers (Delfi [GC], §116). Later, in Magyar Helsinki Bizottság v. Hungary, the Court held that ’the function of bloggers and popular users of the social media may be also assimilated to that of “public watchdogs’’ in so far as the protection afforded by Article 10 is concerned’ (Magyar Helsinki Bizottsag [GC], §168).
Hence, with such an expansive definition of a public watchdog under Magyar Helsinki Bizottsag, it remains unclear whether the present judgment will stand if a host provider does not provide content for public debate but offers space for exchange of opinions and attempts to balance the anonymity online with other interests. In other words, what if a ‘pure’ host provider decides to stand up for its users’ online anonymity, bearing in mind the role and function of online anonymity?
Moreover, in the case at hand, the Court does not offer any guidance as to whether it expects ‘hybrid’ host providers to serve an active or passive role in protecting their users’ online anonymity to receive the Article 10 protections in question. As the applicants and amici argued in Delfi (Delfi [GC], §80, 97, and 106-109), this may create practical and legal issues under the E-Commerce Directive, which will soon be supplemented with the EU Digital Services Act that is swiftly moving towards adoption.
Another question is whether the analysis would change if the anonymous comments were clearly defamatory or unlawful. In Delfi, the comments at stake were deemed ’clearly unlawful’ and degrading human dignity, representing hate speech and incitement to violence (Delfi [GC], §114). On the other hand, in Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, the comments were not clearly unlawful, but concerned reputational harms (MTE, §64-65). In the present case, the Court dismissed the Government’s argument that no final decision on the lawfulness of the comments had been taken. The Court highlighted that the interference was in the lifting of anonymity and its effects, and the analysis on the nature or comments was not decisive. And while an interference with the media company’s rights to protect the anonymity of its user data will weigh less heavily than in cases when the media outlet is sued for the content of the comments, the former interference must be assessed as part of the proportionality test. Therefore, the nature of the comments does not seem to be a central matter, when the question is on disclosure of anonymous user data.
Finally, it is worth considering whether the analysis applies if the comments do not concern politicians. It is a well-established standard (see above) that politicians are subject to a wider degree of criticism than private individuals. This in turn narrows the margin of appreciation of domestic courts. This factor appears to have played a crucial role in the balancing test, that included the plaintiffs’ right to protect their reputation and the applicant company’s right to freedom of press, as well as the applicant’s role in protecting the personal data of the comment’s authors and their freedom to express their opinions publicly. Again, while this case is not about the applicant’s liability for the user comments, the Court underlined that the comments were made as part of a political debate. Hence, the context of a political discussion adds a factor to weigh in the balancing analysis.
In Standard Verlagsgesellschaft MBH v. Austria (No. 3), the ECtHR attempted to carve a new space for protecting anonymous speech online. It acknowledged the importance of balancing the benefits of online anonymity and freedom of press with disclosing the user data to protect rights of others.
At the same time, it opened the door to some interconnected questions that remain unanswered at the moment. While highlighting the importance of ensuring anonymity online, the Court tied it to the journalistic nature of the applicant company, thereby, making it unclear whether the right to expressing anonymous opinions online will enjoy similar protections irrespective of the public watchdog nature of the host provider. Hence, the Court expanded the Article 10 rights of media outlets, that provide opportunities to anonymously speak on their portals, to include protections against unsubstantiated orders to disclose such user data. Nonetheless, it is to be seen if this expansion lives to see another day in cases involving other host providers.