Strasbourg Court affirms the importance of anonymity online – Ruaridh Owens

23 February 2022 by Ruaridh Owens

On 7 December 2021, the European Court of Human Rights (the “Court”) published its judgment in Standard Verlagsgesellschaft MBH v Austria (No.3) regarding anonymity online. The Court found that the Austrian courts had violated the applicant’s right to freedom of expression by requiring the applicant to disclose the identities of those who had posted allegedly defamatory comments on its website. The Court’s judgment is a notable development of its case law regarding freedom of expression on the internet. 

Legal and factual background

The applicant is the publisher of the Austrian Der Standard daily newspaper published in print, digitally and online. At the end of each online article, registered users can post comments anonymously. When registering, users are warned that the applicant may disclose their data if required to do so by law. Users also accept the applicant’s Community Guidelines stating that users are responsible for their comments and that personal attacks, threats, abuse, or defamatory statements are prohibited. All comments are screened by a keyword identification programme before they can be posted. The applicant also operates a “notice and take down” system via which users can trigger a manual editorial review of comments by using a “report” button. 

In March 2012, Der Standard published an article online regarding K.S., the leader of a right-wing regional political party in Austria at the time, on its online portal. The article attracted 1,600 comments. In two of these comments, K.S. was described as corrupt and labelled as a Nazi [Standard, §§ 14 and 15]. Later, in May 2013, the applicant published an interview with H.K. on its website. At the time, H.K. was the general secretary of a right-wing Austrian political party. A user commented on the article that “…if [anti-mafia law] were for once to be applied to the extreme-right scene in Austria – then [H.K.] would be one of the greatest criminals in the Second Republic” [Standard, §19]. 

To bring a defamation claim against the authors of these comments, K.S. and H.K. asked the applicant to disclose the relevant users’ data. The applicant declined. K.S. and H.K. then launched a court action to force the applicant to disclose this data. While the first instance courts in Austria found in favour of the applicant, this was reversed on appeal and the applicant was ordered to disclose the users’ data. 

The Court’s judgment: 

Whether the applicant’s right had been interfered with: 

The Court found that the applicant’s right to freedom of expression under Article 10 of the European Convention on Human Rights (the “Convention”) had been interfered with by the Austrian courts. 

The applicant had argued that forcing it to reveal its users’ data amounted to requiring it to reveal its journalistic sources [Standard, §53]. The Court disagreed. It noted that a “source” is “any person who provides information to a journalist”. However, the users’ “comments posted on the forum… were clearly addressed to the public rather than to a journalist” and were therefore not journalistic sources [Standard, §71]. 

Separately, however, the Court noted that the applicant’s role in hosting these comments was only “one of its roles as a media company”; it did not “only provide a forum for users” but took “an active role in guiding them to write comments”, a function which the applicant “described as an essential and valuable part of the news portal” [Standard, §§7 and 73]. The applicant, the Court found, also partly moderated these comments. As such, the applicant’s news portal and comments forum activities were “closely interlinked” [Standard, §73]. According to the Court, the applicant’s overall function was therefore to

further open discussion and to disseminate ideas with regard to topics of public interest, as protected by the freedom of the press [Standard, §73]. 

To encourage the use of its comment forum, the applicant allows users to comment anonymously under usernames [Standard, §74]. Anonymity online, the Court acknowledged, helps to promote the free flow of opinions, ideas, and information, and serves to protect users’ private lives [Standard, §76]. Lifting this anonymity would create a chilling effect on the use of such comment forums as it would deter people from contributing to debate online [Standard, §74]. This would have an indirect effect on the applicant’s ability, as a media company, to contribute to public debate via its online news portal [Standard, §74]. The Court, therefore, concluded that the applicant’s right to freedom of expression had been interfered with, irrespective of the outcome of any subsequent defamation proceedings [Standard, §§79 and 80]. 

Was the interference “necessary in a democratic society”?

As the parties did not dispute that this interference was both prescribed by law and pursued a legitimate aim, the Court focused on whether this interference was “necessary in a democratic society” under Article 10(2) of the Convention. The Court reiterated its consistent jurisprudence that it must determine whether the Austrian national courts have struck a fair balance between the applicant’s Article 10 right and the Article 8 rights of K.S. and H.K. The Court, it noted, “would require strong reasons to substitute its view for that of the domestic court” [Standard, §84, citing Delfi, §139]. 

The Court first considered the nature of the comments in question: while “seriously offensive”, they did not amount to hate speech or incitement to violence; they related to two politicians and were expressed in the context of a public debate on issues of legitimate public interest [Standard, §§90 and 93]. 

The Court then considered the role that anonymity should play in this balancing act. Anonymity online is not absolute; a potential victim of a defamatory statement must be able to assert their claim [Standard, §§75 and 92]. The Court stated, therefore, that the national courts must examine the alleged defamation claim and balance the conflicting interests at stake before deciding whether the users’ data should be disclosed [Standard, §92]. The importance of preserving users’ anonymity online must feature as one of these considered interests [Standard, §§94 and 95]. 

In the Court’s opinion, the Austrian courts had failed to appropriately consider anonymity as one of these conflicting interests. Like the Court, the Austrian courts concluded that the comments were not journalistic sources. Therefore, as it could not be ruled out that the users’ comments were defamatory, the Austrian courts ordered the applicant to disclose its users’ data to K.S. and H.K without considering the applicant’s (and its users’) interests in remaining anonymous. In particular, the Austrian courts failed to consider the “function of anonymity as a means of avoiding reprisals or unwanted attention” and its role “in promoting the free flow of opinions, ideas and information”, particularly where political speech is concerned [Standard, §§93 and 95]. As such, the Court concluded that the applicant’s right to freedom of expression had been violated. 

Commentary: 

This case is reminiscent of the Court’s previous judgments in Delfi AS v Estonia, and Magyar Tartalomszolgáltatók Egyesülete and Index.hu zrt v. Hungary. Those cases dealt with the liability of online news platforms for comments posted by third parties. In Delfi, the Court found that imposing liability on an online news platform for comments posted by third parties which clearly amounted to hate speech was justified. On the other hand, in Magyar, the Court took the opposite view, deciding that comments made on the applicant’s online news platform which were vulgar (but not clearly unlawful) did not justify the imposition of liability on the applicant. However, as the Court made clear, Standard 

does not concern the liability as such of the applicant company but its duty as a host provider to disclose user data in certain circumstances [Standard, §68].

Practical issues: 

As explained above, in finding an interference, the Court focused on the connection between the applicant’s news platform and comments forum. Requiring it to disclose users’ data created a chilling effect on the use of these forums which indirectly affected the applicant’s ability to contribute to public debate.  

This approach creates some practical difficulties. K.S. and H.K. originally asked the applicant to disclose the users’ data before seeking a court order to force this disclosure. Had the applicant disclosed the users’ data in response to this original request, and the users had been subject to a defamation action, the national courts would never have had the opportunity to carry out the balancing act which the Court has set out in Standard. As such, some clearer guidance is likely to be required from the Court regarding how this right is to be practically protected by online platforms to ensure that users’ anonymity is consistently protected. Relying upon online platforms to decide whether to disclose users’ data at their discretion is unlikely to result in consistent protection for anonymity online.

Moderation and the applicant’s role as a journalist: 

The Court’s conclusion that the applicant’s right to freedom of expression was being interfered with on account of its journalistic activities and comments forum being “closely interlinked” [Standard, §73] may also present problems in the future for other online discussion platforms. In Magyar Helsinki Bizottság v. Hungary, the Court acknowledged that bloggers and popular users of social media may also act as “public watchdogs” and contribute to public debate [Magyar Helsinki, §168]. However, the Court’s judgment implies that pure host providers would not fall within the scope of Article 10 of the Convention as their comment forums are not closely linked to an online news platform. As such, users of social media sites who contribute to public debate would not receive the same level of protection for their anonymity online under Article 10 of the Convention as those same persons making the same comments directly in the comments section of a news platform.  

Conclusion:

The Court’s judgment is not perfect. It is overly focused on issues of the applicant’s journalistic function and to what degree it moderated the users’ comments. It also leaves some practical questions about the enforcement of the Court’s balancing test unanswered. 

However, it clearly demonstrates that the Court considers anonymity to be key to protecting freedom of expression online. While there are questions to be answered, the focus of national courts when applying this judgment should be on balancing the function of anonymity online against the other factors to which the Court has historically given weight in both Delfi and Magyar.

Ruaridh Owens is currently Trainee Solicitor at Slaughter and May. The views expressed in this piece are entirely his own.