Blog Symposium “Strasbourg Observers turns ten” (2): The Court’s subtle approach of online media platforms’ liability for user-generated content since the ‘Delfi Oracle’

Dirk Voorhoof (Human Rights Centre, Ghent University and Legal Human Academy)

On 18 June 2015, Strasbourg Observers published our blog postDelfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers’. It situated and commented the Grand Chamber judgment of 16 June 2015 in the first case before the European Court of Human Rights on online media liability for user-generated content. In particular the application and impact of Article 10 ECHR was tested with regard to the liability of an online news portal for offensive (anonymous) comments posted by its readers below an online news article (see the Grand Chamber judgment in Delfi AS v. Estonia). The Grand Chamber, by fifteen votes to two, found the imposition of liability of the Estonian news portal justified and proportionate, in particular because the users’ comments had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis. The circumstance that Delfi had immediately removed the offensive content after having received notice of it, did not suffice to exempt Delfi from liability. Now this blog post, nearly five years after the final Delfi judgment, focusses on the impact of the Delfi case and gives a short overview of the further developments in the Court’s case law determining the scope of liability of internet platforms or other online intermediaries for user-generated content. Finally we refer to the initiative by the Committee of Ministers of the Council of Europe recommending the member states to respect and  apply a set of guidelines when implementing the legislative frameworks relating to internet intermediaries, including some principles guaranteeing users’ rights to freedom of expression in the online environment. Continue reading

Magyar Kétfarkú Kutya Párt (MKKP) v. Hungary: Technology meets freedom of expression and the rule of law in an electoral context

By Dr. Petra Gyöngyi (Postdoctoral fellow at the University of Oslo, member of Judges under Stress – The Breaking Point of Judicial Institutions)

On January 20, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered a final decision in the case of Magyar Kétfarkú Kutya Párt (MKKP) v Hungary. The case concerned freedom of expression as guaranteed by Article 10 ECHR in an election context – in particular the use of a mobile application made available by a political party (MKKP) where voters could share an anonymous photo of their invalid paper ballots alongside political messages as a sign of protest against a national referendum. The National Election Committee imposed a fine on MKKP, giving rise to the question of whether there has been a violation of the political party’s freedom of expression. The Grand Chamber held that the legal rules that constituted the basis for imposing a fine on MKKP were insufficiently foreseeable for the purposes of Article 10(2), did not rule out arbitrariness in its application and did not enable MKKP to regulate its conduct. As such, the Court held that there has been a violation of Article 10 of the Convention.

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