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Policy Document

Recommendation CM/Rec(2018)2 - Council of Europe

Recommendation of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries
The recommendation is divided in two items aimed at the protection and promotion of human rights and fundamental freedoms in the digital environment. While the first item deals with the "Obligations of States", the second item is focused on the "Responsibilities of Internet Intermediaries". 1) Obligations of States The Obligations of States chapter is focused on the aspects of legality, legal certainty and transparency, the establishment of adequate safeguards for freedom of expression and for privacy and data protection. Each of these points is summarized below. Legality - any request or action should be prescribed by law, exercised within the limits conferred by law and constitute a necessary and proportionate measure in a democratic society. States should not exert any kind of pressure through non-legal means Legal...
Court Decision

Pihl v. Sweden

Plaintiff brought a claim against a small, non-profit entity that operated a blog and permitted public comments, claiming it should be liable for a defamatory comment posted by a user. Swedish courts rejected the claim. Plaintiff pursued the case to the European Court of Human Rights (ECtHR), saying that his rights to reputation and private life had been violated. The ECtHR noted the need to balance plaintiff's rights against others' rights to free expression and information. In light of the circumstances, it concluded that Sweden had struck a fair balance. In particular, the Court noted, this was because the comment had not amounted to hate speech or an incitement to violence; it had been posted on a small blog run by a non-profit association; it had been taken down the day after the plaintiff notified the blog's...
Court Decision

Tamiz v. UK

This case, involving anonymous comments posted to a blog, could have been an intermediary liability case, but was decided on other grounds. Aspects of the court’s discussion, however, are relevant for intermediaries. Tamiz sued Google because of allegedly defamatory comments posted to a blog on the company’s Blogger service. The UK courts agreed that three of the comments were potentially defamatory, but held that prior to being notified of their presence, Google acted neither as a publisher nor as a secondary publisher/distributor under defamation law. After receiving notice, the UK court concluded, Google could potentially be deemed to have associated itself with the statements. However, a factual question remained whether time that elapsed between notice and was were sufficient for this inference to arise. In any...
Court Decision

MTE v. Hungary

Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary
This case concerned an online news site’s liability for reputational harm to a business caused when Internet users posted false and offensive statements in the news site’s comments section. Defendant news site honored removal notices but didn’t actively police all of its users’ comments. Hungarian courts ruled that the site was liable, even before it knew about the comments. The ECtHR disagreed. It said that such a standard, which would effectively compel the platform to proactively find and remove every user comments, “amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet[.]” Accordingly, the Hungarian court’s ruling violated Article 10 of the European Convention of Human Rights. Per the ECtHR, the lower court’s mistake was that...
Court Decision

Cengiz and Others v. Turkey

A Turkish criminal court ordered that national ISPs block access to YouTube, because of videos critical of Ataturk. Applicants, all university academics and regular YouTube users, claimed that the block affected their right to receive and impart information and ideas under Article 10 of the European Convention on Human Rights. The court noted that YouTube enabled the broad exchange of information, including on political and social matters, and supported citizen journalism. It also found that there was no provision in the law allowing the domestic courts to impose a blanket blocking order on access to the Internet or to hosting services on account of specific content. It concluded in applicants' favor.
Court Decision

Zakharov v. Russia (European Court of Human Rights)

The ECHR reviewed the Russian regulatory framework for mass surveillance on telecom networks (aka "SORM") and ruled that it is incompatible with Article 8 ("Right to respect for private life and correspondence") of the European Convention on Human Rights.