Information Note on the Court’s case-law 205
March 2017
Pihl v. Sweden (dec.) - 74742/14
Decision 7.2.2017 [Section III]
Article 8
Positive obligations
Article 8-1
Respect for private life
Alleged failure by domestic authorities to hold service provider responsible for content of third-party comments on blog: inadmissible
Facts – In September 2011 the applicant was accused in a blog post run by a small non-profit association of being involved in a Nazi party. The following day a comment accusing the applicant of being a “hash-junkie” was posted by an anonymous third party. Following a request by the applicant both the blog post and the comment were removed and the association published a new post apologising for the mistake. The applicant brought civil proceedings against the association alleging, inter alia, under section 5 of the Act on Responsibility for Electronic Bulletin Boards* that it was responsible for failing to remove the comment sooner than it had done. That action was dismissed on the grounds that the comment, though defamatory, was not covered by the legislation. An application to the Chancellor of Justice for damages for the State’s failure to fulfil its positive obligation to protect the applicant’s private life was likewise dismissed.
In the Convention proceedings the applicant complained under Article 8 of the Convention that the fact that Swedish legislation prevented him from holding the association responsible for the defamatory comment had violated his right to respect for his private life.
Law – Article 8: The State had achieved a fair balance between the applicant’s right to respect for his private life under Article 8 and the association’s right to freedom of expression guaranteed by Article 10.
In so finding, the Court noted (i) the comment did not concern the applicant’s political views and had nothing to do with the content of the original blog post and so could hardly have been anticipated by the association; (ii) though offensive, the comment did not amount to hate speech or incitement to violence; (iii) the association was a small non-profit association, unknown to the wider public, and it was thus unlikely that it would attract a large number of comments or that the comment about the applicant would be widely read; (iv) the association had removed the blog post and the comment a day after being notified by the applicant (it remained on the blog for about nine days in total) and had published a new blog post with an explanation for the error and an apology; (v) although the applicant had obtained the IP-address of the computer used to submit the comment, he had not taken any further measures to try to obtain the identity of the author; (vi) the chilling effect on freedom of expression caused by internet liability for third-party comments could be particularly detrimental for a non-commercial website; and (vi) the scope of responsibility of those running blogs was regulated by domestic law and the applicant’s case had been duly considered on its merits both by the domestic courts and the Chancellor of Justice.
Conclusion: inadmissible (manifestly ill-founded).
(See also, under Article 10 of the Convention, Delfi AS v. Estonia [GC], 64569/09, 16 June 2015, Information Note 186; and Magyar Tartalomszolgáltatók Egyesülete and I Zrt v. Hungary, 22947/13, 2 February 2016, Information Note 193)
* Section 5 of the Act on Responsibility for Electronic Bulletin Boards requires service providers to erase and prevent the dissemination of messages that infringe certain provisions of the criminal law or third-party copyright.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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