Refusal to impose civil liability on forum host for vulgar comments did not violate victim’s article 8 rights

Refusal to impose civil liability on forum host for vulgar comments did not violate victim's article 8 rights

A woman in respect of whom vulgar comments were made on an internet forum suffered no violation of her article 8 right to respect for private life after a court refused to impose civil liability on the forum’s host.

The court found in particular that the national courts had acted within their discretion when seeking to establish a balance between her rights under article 8 and the opposing right to freedom of expression under article 10 of the news portal and host of the debate forums. Moreover, the domestic courts’ rulings on litigation costs being awarded to the defendants had not as such violated article 8.

Mona Høiness, who is a well-known lawyer, began civil proceedings before the Oslo City Court in May 2011 against the Hegnar Media AS company and Mr H., an editor working for the internet portal Hegnar Online, for defamation. She stated that her honour had been infringed because of sexual harassment in three comments made anonymously in Hegnar Online’s forum, which was incorporated into Hegnar Media AS.

The defendants argued that they had not been aware of the comments and that they had been removed as soon as they had become aware of them. In January 2012 the city court ruled in favour of the defendants. It held that the comments in question had not amounted to unlawful defamation as they had been incapable of offending either Ms Høiness’s honour or her reputation.

Ms Høiness appealed. The High Court held in October 2013 that Ms Høiness’s claim for compensation could not succeed unless the defendants had acted with sufficient culpability. In that regard it noted, amongst other things, that there were “warning buttons” on the website, which readers could click on in order to react to comments. The High court also upheld the city court’s decision on litigation costs and awarded the defendants 183,380 Norwegian kroner (approximately €20,050). Ms Høiness appealed but leave to appeal to the Supreme Court was refused.

The court reiterated that a person’s right to protection of his or her reputation was encompassed by article 8.

It further observed that what was at issue in the case was not an act by the state but the alleged inadequacy of the protection afforded by the domestic courts to Ms Høiness’s private life. In addition to a negative obligation, there might be positive obligations inherent in effective respect for private life.

As concerns competing interests under article 8 and article 10, the court had established general principles, as summarised in Delfi AS v Estonia. The court would usually afford a wide margin if the state was required to strike a balance between competing interests or competing Convention rights.

In making this proportionality assessment, the court had also identified specific aspects of freedom of expression as being relevant, such as the context of the comments, the measures applied by the company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and the consequences of the domestic proceedings for the company.

The court noted that the comments made about Ms Høiness had been found by the city court not to constitute defamation under national law, while the High Court had deemed it unnecessary to take a stand on whether they were defamatory or not. The court also considered that it was not obliged to examine the nature of the comments in depth as they in any event did not amount to hate speech or incitement to violence.

Secondly, the court saw no reason to contest Ms Høiness’s allegation that she would have faced considerable obstacles in attempting to pursue claims against the anonymous individuals who had written the comments. As to the context in which the comments were made, the court observed that the debate forums had not been particularly integrated in the presentation of news and thus had not appeared to be a continuation of editorial articles.

With respect to the measures adopted by Hegnar Online, there had been an established system of moderators who monitored content. Moreover, readers had the possibility to click on “warning buttons”, and warnings by other means, such as email, had also been successful. In the instant case, one of the comments had even been deleted on the moderator’s own initiative before receipt of notification by Ms Høiness’s counsel. The High court had found, upon an overall examination and assessment of the measures that had been put in place in order to monitor the forum comments, and the specific responses to Ms Høiness’s notifications, that the news portal company and its editor had acted appropriately.

The court observed that Ms Høiness’s case had been considered on its merits at two levels of domestic jurisdiction. The courts had reviewed all the relevant aspects. In line with the principles set out in Delfi AS v Estonia, there were no reasons for the court to substitute a different view for that of the national courts.

The court found accordingly that the domestic courts had acted within their margin of appreciation when seeking to establish a balance between Ms Høiness’s rights under article 8 and the opposing right to freedom of expression under article 10 of the news portal and host of the debate forums.

The court further noted the considerable amount of litigation costs imposed on Ms Høiness.

However, taking account of the nature of the claim lodged before the national courts and the subject matter, the court did not consider that it could call into question the domestic courts’ assessment on costs. The court was, in any event, satisfied that the domestic courts had sufficiently safeguarded Ms Høiness’s rights under article 8 and there had been no violation of that provision.

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