PIHL v. Sweden: the liability of Internet Content Providers further explained

It is not the first time that the Court has ruled on this subject. In its milestone case of Delphi v. Estonia of 16 June 2015, the Court decided for the first time that an Internet Content Provider, such as a news portal, can be held liable for the reactions of its users. In the case MTE vs. Hungary of 9 February 2016, the Court confirmed this principle, but clarified the circumstances that could lead to such an objective liability.

Now, in the most recent case of Pihl v. Sweden, the general principle has again been confirmed, but further explained.

1. The facts

The facts, which resulted in this decision, are as follows. On 29 September 2011, a blog has been published on a website of a non-profit association, in which a Swedish citizen has been accused to be involved in a Nazi party. 

The website allowed that Internet users commented on the blogs. However it was specified that there was no monitoring before publication, and that the users are responsible for their own messages. Users were also requested to behave decently and to obey the law.

The following day, an anonymous reaction was posted under the blog, stating that the Swedish citizen is a “hash junky, which is confirmed by several people”.

On 8 October 2011, the Swedish citizen reacted to the blog, and posted his own response. He wrote that the facts were wrong, and that it should be deleted immediately.

On 9 October 2011, the non-profit association removed the blog as well as the reaction and published an apology in which it stated that the blog was based on wrongful information.

The Swedish citizen was not satisfied with the reaction of the non-profit organization. He complained that the blog has been online for too long (9 days), and that it was still possible to find it through the use of online search engines. He initiated legal proceedings against the non-profit organization, and claimed symbolic damages for the amount of 1 Swedish Crone. The Swedish citizen was of the opinion that the blog and the reaction was defamatory and that the non-profit organization should be held responsible both for the blog as for the reaction of the anonymous user.

The case was brought before the Swedish court of Linköping. This court declared itself without jurisdiction to hear the claim concerning the blog. According the Swedish law, the blog falls under the scope of the Swedish fundamental law on freedom of expression and claims pursuant to this law can only be judged by the court of Stockholm.

On the other hand, the Swedish court of Linköping held that it did have jurisdiction to rule on the claim concerning the anonymous reaction.

During the procedure before the Swedish court, the non-profit association admitted that the blog, as well as the reaction were indeed defamatory, but at the same time it underlined that each user was responsible for its own reaction. The Swedish courts followed the arguments of the non-profit association and decided that there existed no legal grounds to hold the non-profit association liable for not removing the reaction sooner.

Subsequently, the Swedish citizen lodged an appeal before the European Court of Human Rights. Only the anonymous reaction was the object of this procedure. The potential liability of the non-profit association for the blog as such was not part of the debate.

2.    Decision of the European Court of Human Rights

Firstly, it should be noted that according to the Court the only ground for the defamatory nature of the anonymous reaction was the fact that it was accepted as such by the Swedish Courts. The Court held that the comment did not amount to hate speech and did not constitute a breach of Article 10 ECHR. It accepted that given the offensive nature of the comment, it could however be considered as defamatory.

In its examination of the potential liability of the non-profit association, the Court took several elements into consideration, such as the context of the comments, the measures taken by the non-profit association to prevent the publication of defamatory comments or to delete them, the liability of the author of the comment or the consequences of national proceedings on the association.

Concerning the context of the post, the Court states that the reaction was posted on a blog accusing the Swedish citizen of being involved in a Nazi party. The blog was immediately removed after the reaction of the Swedish citizen and an apology was published. The “defamatory” post however concerned the alleged drug use of the Swedish citizen and thus was not related to the content of the blog. The Court held correctly that the NGO could not foresee such a reaction, contrary to the facts leading to the Delfi-case.

Furthermore, the Court adds weight to the fact that the association is a small non-profit association, unknown to the wider public. It is unlikely that the blog would generate a large number of reactions, or that the reactions would be widely spread. To expect that the association should assume that some unfiltered comments might be in breach of the law would result to requiring excessive and impractical forethought capable of undermining the right to impart information via the Internet.

The measures foreseen by the non-profit association are sufficient according to the Court. The website provided a notice-and-take down system, and it was clearly stated that the users are responsible for their own reactions. In addition, the comment had been removed after 9 days.

The argument that the blog could be found through an online search engine was also rejected by the Court. The Court answered that the Swedish citizen could always apply the right to be forgotten.

The claim of the Swedish citizen was rejected and the non-profit association was not held liable for the publication of the anonymous comment on its website.

3.    Conclusion

With this judgement, the Court confirms and refines its prior jurisprudence. For the time being, the responsibility of Internet Content Providers for the reaction of its users is not up for discussion. The circumstances that could lead to this responsibility on the other hand are nuanced by this decision.

The Court makes an important distinction between websites, which are operated with a profit aim and those, which are not. In this regard, the Court examines whether the measures taken by the Internet Content Providers are adequate enough. This will be judged more strictly. Other elements are the size of the public of the website, a possible chilling effect on the freedom to impart information, and of course the nature of the comments.

The Court confirms that it is not necessary to monitor the reaction, and that the possibility to report abuse can suffice. However, this should be somewhat nuanced. In this case, as well as in the MTE v. Hungary case, there were no inciting comments. This cannot be said in the Delfi v. Estonia case, in which the court held that a notification of abuse is not always sufficient.

A notification of abuse or notice-and-take-down system will be deemed adequate if it could not be expected that the content will lead to inciting reactions. If on the other hand, it can be expected that an article will be provocative, it is wise to screen the reactions of the users.