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Hungary: Court ruling on liability for “vulgar and offensive” online comments

Human rights judges ruled today that a self-regulatory body and an Internet news portal were not liable for the offensive online comments of their readers.

In today’s Chamber judgment in the case of Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary (application no. 22947/13) the European Court of Human Rights held, unanimously,
that there had been:

a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned the liability of a self-regulatory body of Internet content providers and an Internet news portal for vulgar and offensive online comments posted on their websites.

The applicant self-regulatory body (Magyar Tartalomszolgáltatók Egyesülete) and news portal (Index.hu Zrt) both complained that they had been held liable by the national courts for online comments posted by their readers following the publication of an opinion criticising the misleading business practices of two real estate websites.

The court reiterated that, although not publishers of comments in the traditional sense, Internet news portals had to, in principle, assume duties and responsibilities.

However, the court considered that the Hungarian courts, when deciding on the notion of liability in the applicants’ case, had not carried out a proper balancing exercise between the competing rights involved, namely between the applicants’ right to freedom of expression and the real estate websites’ right to respect for its commercial reputation.

Notably, the Hungarian authorities accepted at face value that the comments had been unlawful as being injurious to the reputation of the real estate websites.

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It is to be noted that the applicants’ case was different in some aspects from a recent case decided by the court (Delfi AS v. Estonia, application no. 64569/09) in which it had held that a commercially-run Internet news portal had been liable for the offensive online comments of its readers.

The applicants’ case was notably devoid of the pivotal elements in the Delfi AS case of hate speech and incitement to violence. Although offensive and vulgar, the comments in the present case had not constituted clearly unlawful speech. Furthermore, while Index is the owner of a large media outlet which must be regarded as having economic interests, MTE is a non-profit self-regulatory association of Internet service providers, with no known such interests.

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