The impact of digital platforms and social media on freedom of expression and pluralism

date: 09 November 2021

location: Webinar (University of Belgrade Faculty of Law)

presenters: Professor Dušan Popović

moderators: -

themes: The impact of digital platforms and social media on freedom of expression and pluralism

The webinar entitled “Debate: The impact of digital platforms and social media on freedom of expression and pluralism” was dedicated to the analysis of the European approach to online comments and defamation. A defamatory statement is a false or untrue statement of fact that harms the reputation of a living person. In the digital environment, defamatory content can be easily shared and may remain available online for a very long period of time. During the webinar Professor Dušan Popović analyzed the legal status of those online comments that may threaten the reputation of a person, from a freedom of speech perspective and within the auspices of European law. These comments typically appear as anonymous statements, signed only with a ‘nickname’ not allowing for identification of a poster.

The webinar startedt with the explanation of the specific place the freedom of expression occupies within the European legal framework. Although both in the United States and in Europe legal provisions declare freedom of expression as a human right (fundamental right), there are some important differences between the two jurisdictions. In Europe, the exercise of freedom of expression must be balanced with the protection of other fundamental rights (for example, national security). Due to the complexity of the constitutional landscape, there is no European counterpart to the US First Amendment. In Europe, the protection of freedom of expression stems from the variety of sources, in particular from the European Convention on Human Rights, the EU Charter of Fundamental Rights, a number of national Constitutions, and case-law of the European courts. Under Art. 10 of the ECHR, the freedom of expression includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. However, the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The European Union has adopted several pieces of legislation which set the legal status of defamatory online comments. The Directive on electronic commerce is of outmost importance given that it regulates the dissemination of online contents. Under the Directive, the intermediaries which serve as hosting providers would ordinarily benefit from an exemption for liability for illegal content, as long as they maintain a neutral or passive approach towards that content. A service provider that hosts third-party content may avail of this exemption on condition that it does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent, and that upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. The Court of Justice of the European Union has also contributed to the better understanding of the intersection between freedom of expression and protection of personal rights. For example, in the Eva Glawischnig-Piesczek case, the Court of Justice of the European Union provided some useful interpretative guidance in respect of the safe harbor regime and the prohibition of general monitoring obligation.

However, the European approach to defamation cannot be understood unless the system of the European Union is combined with that of the European Convention on Human Rights. The European Court of Human Rights’s approach towards defamatory online comments is best demonstrated in decisions Delfi v. Estonia and MTE v. Hungary. These judgements were analyzed in detail during the webinar. In Delfi v. Estonia, the ECtHR was deciding on a liability of Delfi, a high-volume Estonian online news outlet, for defamation based on offensive comments posted by its readers below one of its online news articles. Delfi published a story concerning ice bridges, which generated a number of responses. Some of these contained offensive material, including threats directed against an individual designated as L. Few weeks later, L requested that around 20 comments be deleted and damages be paid. Delfi removed the offensive comments the same day, but refused to pay damages. The matter then went to court and L was awarded damages. Delfi’s claim to be a neutral intermediary and therefore immune from liability under the EU Directive on electronic commerce was rejected. The news organizations brought the matter to the ECtHR, which had found no violation of the right to freedom of expression in this case. Delfi then requested a referral of the case to the Grand Chamber due to the concern that the First Section judgment would have serious adverse repercussions for freedom of expression and democratic openness in the digital era.

In 2016, the European Court of Human Rights delivered a judgement in case MTE v. Hungary. This decision was also be analyzed in detail during the webinar. The case also concerned the liability of online intermediaries for user comments. The problem arose in 2010 when MTE, a self-regulatory body of Hungarian Internet content providers, published an opinion about two real estate management websites, owned by the same company. In the opinion entitled “Another unethical commercial conduct on the net”, MTE denounced the company’s business strategies and customer treatment. Shortly after, a number of offensive pseudonymous comments were posted under the opinion. The same type of comments appeared when the full text of the opinion was reproduced by the online portals and The company operating the real estate management websites brought a civil action before the Budapest Regional Court, claiming that both the opinion and comments had infringed its right to good reputation. The Budapest Regional Court found that the comments went beyond the limits of freedom of expression. The Regional Court and later the Court of Appeal rejected the applicants’ argument that they were mere passive intermediaries within the meaning of the EU Directive on electronic commerce and the Hungarian Electronic Commercial Services Act. The Hungarian Supreme Court shared the Court of Appeal’s view in finding that the comments were capable of harming the plaintiff’s good reputation and that the applicants’ liability consisted of their having allowed their publication. MTE and appealed to the ECtHR, arguing that, by effectively requiring them to moderate the contents of comments made by readers on their websites, the domestic courts unduly restricted their freedom of expression and thus the liberty of online commenting.

In his concluding remarks, the speaker emphasized that defamatory online comments posted by the users may generate significant problems for web-portals and social networks. Although the EU Directive on electronic commerce provides for the limitation of liability for intermediaries, its provisions do not fully correspond to the recent technical developments and the appearance of new forms of online communication. Twenty years ago, the Directive envisaged three categories of intermediaries: those which are mere conduits, those which offer caching and those which host content. All three categories of intermediaries are seen as rather facilitators via technical services than contributors to the provision of specific content. However, the proper qualification of the third category, that of hosting sites, has become quite challenging in the last decade, given the development of a range of new online services. The Directive on electronic commerce does not harmonize the conditions for holding intermediaries liable, but only the conditions for exempting Internet intermediaries from liability.

In the final part of the webinar, the speaker also addressed the future developments in EU law by referring to the recent European Commission’s proposal of the Digital Services Act, which attempts to rectify certain deficiencies of the existing content removal mechanism. The DSA proposal introduces the obligation for service providers to act when they receive orders in relation to a specific item of illegal content. ‘Illegal content’ is defined as any information, which, in itself or by its reference to an activity, including the sale of products or provision of services, is not in compliance with European Union law or the law of a Member State, irrespective of the precise subject matter or nature of that law. The recitals provide for more detail, by specifically referring to illegal hate speech or terrorist content and unlawful discriminatory content, or the content which relates to activities that are illegal, such as the sharing of images depicting child sexual abuse, unlawful non-consensual sharing of private images, online stalking, the sale of non-compliant or counterfeit products, the non-authorized use of copyright protected material or activities involving infringements of consumer protection law.  Hosting providers, including online platforms, are subject to additional rules such as the reporting mechanisms for illegal content, or the providing a statement of reasons in relation to a decision to remove or disable access to specific items of content. Given that the DSA proposal refers to ‘illegal content’ that may be disabled or removed under certain conditions, it seems that all types of online comments will not be caught under the proposed mechanism. This necessitates once again distinguishing between ‘manifestly illegal comments’ and ‘merely offensive comments’.   

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