“That’s what she said!” – Alexandru Pătraşcu v. Romania

By Koen Lemmens

Liability for what others said on social media remains a complicated issue as a recent ECtHR judgment illustrates once again. In Alexandru Pătraşcu v. Roumania, the Court had to assess the applicant’s civil conviction for statements made by him, but also for statements made by other persons, on his Facebook page. According to the Romanian courts, these remarks were, as was alleged by two of the people targeted in them, indeed insulting and denigrating. As a result, the applicant had to pay compensation for damage to dignity, reputation and honour of the targeted persons. As such, this case is one of the many cases on the conflict between freedom of expression and the protection of reputation. It would hardly attract any attention. Yet, to the extent the case deals with social media accounts, it is highly relevant and worth a closer look.

Facts

The facts are quite straightforward. Mr. Pătraşcu is a passionate fan of classical music and opera. He writes extensively on the topic and has a Facebook page and blog which are well-known in his home country. In 2016, there was a scandal at the Bucharest National Opera. Employees campaigned for the dismissal of other employees who either were foreigners or had worked abroad. These events were picked up by both national and international media. The applicant also wrote on the conflict for some three months and third parties participated in the debate by posting comments and reactions. This could not come as a surprise, as the conflict was fiercely debated in Romanian society and even led to the dismissal of the Minister of Culture.

It appears that some artists were not happy with the coverage on the applicant’s blog and Facebook wall. Two of them obtained a judicial injunction to remove all the comments that were insulting and denigrating for them. They equally obtained that the applicant had to remove all future comments that might negatively impact on their reputation. The applicant also had to pay damages to each of the two claimants.

On appeal, the appellate court partly reformed the initial conviction. It only dealt with the comments on Facebook, limited the number of unlawful publications to 4 by the applicant and 11 comments by third parties, decided that future publications could not be forbidden on the basis of a judicial decision and lowered the damages.

The Court of Cassation dismissed further appeals. The applicant decided to file a complaint before the Strasbourg Court, as he was convinced that his freedom of expression was unlawfully restricted, i.e. in his eyes, Article 10 ECHR would have been violated.

Judgment

The application raises several questions, and three of them are of particular interest. On the one hand, there is the question of the merits of the application. Were the comments published on Facebook covered by freedom of expression? This is the heart of the substantive assessment under the Convention, but as I said before, I do not think this case will be remembered for that aspect. That is why I will go first into this question, but without paying too much attention to this point. On the other hand, and much more relevant I believe, is the question of the attribution of liability. And that breaks down into two subquestions. First, there is the aspect of the liability for the applicant’s own comments – a quite uncontroversial issue. Second, there is the aspect of the liability for statements by third parties: this goes directly to the core of ongoing societal debates on content moderation on social media platforms.

1.           Expressing criticism in the context of a societal debate

With regard to the content and context of the comments, the Court recalls the role of freedom of expression in the context of a public debate. Not surprisingly, the Court affirms that comments on cultural affairs are covered by freedom of expression. It then refers to the well-known Von Hannover criteria, which it uses whenever freedom of expression is to be balanced against the protection of privacy (the protection of reputation, which is one of legitimate aims under Article 10 paragraph 2, has been considered over time to be part of Article 8). Then, the Court equally recalled the essential distinction between statements of fact and value judgements when assessing a proper balance between speech and privacy.

Content wise, these are the principles that traditionally guide the Court’s analysis in these kinds of cases and the one under discussion is just another example of it.

2.           Liability for own comments

When it comes to the liability of the applicant for his own statements, the Strasbourg Court reminds the parties that its role is not to substitute the domestic courts’ judgment by its own. Rather is it for the Court to assess whether the domestic courts correctly balanced all the interests at stake. In this case, it appears that the Romanian Courts did not assess the statements reasonably well. Neither did they pay sufficient attention to the necessity of a conviction to pay damages and the potential chilling effect of such a conviction.

Not surprisingly, the Strasbourg Court found that the four comments published on the Facebook page concerning an issue of public interest, were protected by freedom of expression. There is hardly anything new there. The Court only confirms that the public debate in a democratic society deserves a sufficiently high level of protection.

3. Liability for third parties comments

The case becomes much more interesting, with regard to the analysis of the liability for the comments made by third parties. This is especially true within the context of the internet, since we know how much the Court struggles with the issue in that sphere. It laid the foundations of its case-law in the famous Delfi AS case and delivered a more recent landmark judgment in Sanchez.

Unfortunately, the analysis of this case does not reveal any particular new insights on this front. In fact, the problem is that Romanian domestic law did not allow to deduce any liability for the statements of third parties. The Strasbourg Court noted that such an obligation was deduced by the domestic courts through an innovative interpretation of the existing legal framework and therefore constituted a legal novelty. As such, the applicant could not have anticipated this judge-made line of reasoning. The Court therefore concludes that the legal framework applied to the applicant was not sufficiently clear and foreseeable. The domestic authorities could not infringe the applicant’s freedom of expression since the legal basis was lacking. One of the conditions for a lawful restriction of freedom of expression is a sufficiently clear legal basis.

Therefore, the Court found a violation of Article 10.

Discussion

Upon a closer look, the key question is to what extent the user of a social medium platform has a responsibility to prevent or remove illegal content posted by third parties on his or her account. Many factors may play a role: whether the media platform is professionally run or not, the content of the messages, the fact that the third parties, viz the original posters, are known or not to the accountholder, the reactivity of the accountholder,… All these aspects can be taken into account – and they are actually prominently used by the Court in its case-law. However, one question stands out: what about the potential chilling effect of a legal system that imposes obligations to moderate on social media users? If people can be held liable for what other persons post, they may be inclined, in an attempt to avoid any liability, to remove more than what is strictly necessary. After all, it is better to be safe than sorry. Such an overly cautious attitude is not beneficial to a climate of robust free speech. In this respect, it is worthwhile recalling that, albeit in a completely different era (1831), the Belgian Constitution explicitly mentioned that only the author of a text would be liable for its content, excluding explicitly the publisher, printer or distributor. The system is therefore an exclusive model of liability, which is still in force, and indicates one responsible person, excluding any other. Only when the author is anonymous or not residing in Belgium, the liability shifts to the next person in the chain. It is a system of successive liability, called ‘cascaded liability’. The ratio legis was to avoid “private censorship”, that is: pressure by third parties on the author in order to modify, water down or soften their writings. It is striking that this “private censorship” the Belgian Constitution so forcefully rejected with regard to print media, is so encouraged under the label of “content moderation” in times of social media.

In Delfi AS, the Court clearly accepted that a professionally run platform has a duty to remove hateful online messages within due time. In Sanchez it adopted an analogous approach concerning a local politician. The present case could have been very useful for understanding the scope of such a duty of care. The applicant was not a professional media platform, nor someone with a political function. Moreover, the messages were not “hate speech” in the sense of the traditional case-law of the Court.

As the Court could rely on a strict legality focused reasoning in the case, we however do not get any real clarification on that score. All that is confirmed is that whatever approach is taken domestically to content moderation duties, any judicial innovations on that front cannot cross the lines of legal certainty and foreseeability.