February 23, 2022
On 7 December 2021, the European Court of Human Rights (the “Court”) published its judgment in Standard Verlagsgesellschaft MBH v Austria (#3) regarding online anonymity. The Court held that the Austrian courts had violated the applicant’s right to freedom of expression by requiring him to disclose the identity of persons who had published allegedly defamatory statements on his website. The Court’s judgment constitutes a significant development in its case law relating to freedom of expression on the Internet.
Legal and factual background
The applicant is the publisher of the Austrian Standard newspaper published in print, digital and online. At the end of each online article, registered users can post comments anonymously. When registering, the user is warned that the applicant can disclose his data if the law obliges him to do so. Users also agree to the Contestant’s Community Guidelines stating that users are responsible for their comments and that personal attacks, threats, abuse, or defamatory statements are prohibited. All comments are filtered by a keyword identification program before they can be published. The Applicant also operates a ‘notice and take down’ system through which users can trigger manual editorial review of comments using a ‘report’ button.
In March 2012, Der Standard published an online article about KS, the leader of a right-wing regional political party in Austria at the time, on its online portal. The article generated 1,600 comments. In two of these comments, KS was described as corrupt and labeled as a Nazi [Standard, §§ 14 and 15]. Later, in May 2013, the Claimant published an interview with HK on its website. At the time, HK was the general secretary of a right-wing political party in Austria. One user commented on the article that “…if [anti-mafia law] should for once be applied to the far-right scene in Austria – then [H.K.] would be one of the greatest criminals of the Second Republic” [Standard, §19].
To bring a defamation action against the authors of these comments, KS and HK asked the claimant to disclose the data of the users concerned. The applicant refused. KS and HK then took legal action to compel the applicant to disclose this data. While the lower courts in Austria ruled in favor of the claimant, this was overturned on appeal and the claimant was ordered to disclose user data.
The Court’s judgment:
Was the applicant’s right violated?:
The Court found that the applicant’s right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights (the “Convention”) had been interfered with by the Austrian courts.
The applicant had argued that forcing it to reveal its users’ data amounted to forcing it to reveal its journalistic sources [Standard, §53]. The Court disagreed. He noted that a “source” is “anyone who provides information to a journalist”. However, users”the comments posted on the forum… were clearly directed at the public rather than a journalistand therefore were not journalistic sources [Standard, §71].
On the other hand, however, the Court noted that the applicant’s role in welcoming these comments was only “one of its roles as a media company”; He does not have “only provide a forum for users” but took”an active role in guiding them in writing comments“, a function that the applicant “described as an essential and valuable part of the news portal” [Standard, §§7 and 73]. The petitioner, according to the Court, also partially moderated these comments. As such, the applicant’s news portal and comment forum activities were “closely linked” [Standard, §73]. According to the Court, the applicant’s overall function was therefore to
open up more debate and disseminate ideas on matters of public interest, as protected by the freedom of the press [Standard, §73].
To encourage the use of its comment forum, the submitter allows users to comment anonymously under usernames [Standard, §74]. Online anonymity, court recognized, helps promote free flow of opinions, ideas and information, and serves to protect user privacy [Standard, §76]. Lifting this anonymity would create a chilling effect on the use of such comment forums, as it would deter people from contributing to the online debate. [Standard, §74]. This would have an indirect effect on the ability of the applicant, as a media company, to contribute to public debate via its online news portal [Standard, §74]. The Court therefore concluded that there had been an infringement of the applicant’s right to freedom of expression, irrespective of the outcome of any subsequent defamation proceedings. [Standard, §§79 and 80].
Was the interference “necessary in a democratic society”?
Since the parties did not dispute that this interference was both prescribed by law and pursued a legitimate aim, the Court focused on the question of whether this interference was “necessary in a democratic society” under Article 10(2) of the Convention. The Court reiterated its consistent case-law that it must determine whether the Austrian domestic courts struck a fair balance between the applicant’s Article 10 right and the Article 8 rights of KS and HK. The Court, she noted, “would require solid reasons to substitute its point of view for that of the national court” [Standard, §84, citing Delfi, §139].
The Court first considered the nature of the comments in question: while “seriously offensivethey did not constitute hate speech or incitement to violence; they concerned two politicians and were expressed in the context of a public debate on matters of legitimate public interest [Standard, §§90 and 93].
The Court then wondered about the role that anonymity should play in this balancing act. Online anonymity is not absolute; a potential victim of a defamatory statement must be able to assert his right [Standard, §§75 and 92]. The Court therefore declared that the national courts must examine the allegation of defamation and balance the conflicts of interest involved before deciding whether user data should be disclosed [Standard, §92]. The importance of preserving the anonymity of users online must be among these interests taken into consideration [Standard, §§94 and 95].
In the Court’s opinion, the Austrian courts did not correctly consider anonymity as one of these conflicts of interest. Like the Court, the Austrian courts concluded that the comments were not journalistic sources. Therefore, since it could not be excluded that the user comments were defamatory, the Austrian courts ordered the claimant to disclose its users’ data to KS and HK without taking into account the interests of the claimant (and its users) to remain anonymous. In particular, the Austrian courts did not take into account the “function of anonymity as a means of avoiding retaliation or unwanted attention” and its rolein promoting the free flow of opinions, ideas and information”, especially with regard to political discourse [Standard, §§93 and 95]. Thus, the Court concluded that the applicant’s right to freedom of expression had been violated.
This case recalls the previous judgments of the Court in Delfi AS v Estoniaand Magyar Tartalomszolgáltatók Egyesülete and Index.hu zrt c. Hungary. These cases concerned the liability of online news platforms for comments posted by third parties. In Delphi, the Court held that it was justified to impose liability on an online news platform for comments posted by third parties that clearly constituted hate speech. On the other hand, in Magyar, the Court took the opposite view, finding that comments made on the applicant’s online information platform which were vulgar (but not manifestly illegal) did not justify the applicant’s liability. However, as the Court pointed out, Standard
does not concern the responsibility as such of the requesting company but its duty as a hosting provider to disclose user data in certain circumstances [Standard, §68].
As explained above, in order to conclude that there was an interference, the Court focused on the link between the applicant’s information platform and the comment forum. The obligation to disclose user data created a chilling effect on the use of these forums which indirectly affected the applicant’s ability to contribute to public debate.
This approach creates practical difficulties. KS and HK initially asked the plaintiff to disclose user data before seeking a court order to compel such disclosure. If the applicant had disclosed the users’ data in response to this initial request, and if the users had been the subject of a defamation action, the national courts would never have had the opportunity to carry out the exercise of balancing that the Court has set out in Standard. As such, clearer guidance will likely be required from the Court regarding how this right should be practically protected by online platforms to ensure that user anonymity is consistently protected. Relying on online platforms to decide whether to disclose user data at their discretion is unlikely to result in consistent protection of online anonymity.
Moderation and role of the applicant as a journalist:
The Court’s finding that the applicant’s right to freedom of expression was interfered with by his journalistic activities and commentary forum being “closely linked” [Standard, §73] may also present problems in the future for other chat platforms. In Magyar Helsinki Bizottsag v. Hungary, the Court recognized that bloggers and popular social media users can also act as “public guard dogsand contribute to public debate [Magyar Helsinki, §168]. However, the Court’s judgment implies that pure hosting providers would not fall within the scope of Article 10 of the Convention because their comment forums are not closely linked to an online information platform. . Thus, users of social media sites who contribute to public debate would not benefit from the same level of protection of their online anonymity under Article 10 of the Convention as the same people who make the same comments directly in the section comments from an information platform.
The Court’s judgment is not perfect. It is too focused on questions of the applicant’s journalistic function and the extent to which it moderated user comments. It also leaves unanswered some practical questions regarding the application of the Court’s balancing test.
However, it clearly demonstrates that the Court considers anonymity essential to protect freedom of expression online. While there are questions that need to be answered, national courts, when applying this judgment, should focus on balancing the function of online anonymity against the other factors to which the Court has historically given weight in both Delphi and Magyar.
Ruaridh Owens is currently a trainee solicitor at Slaughter and May. The opinions expressed in this article are entirely his own.