Abstract
Purpose – The purpose of this study is to investigate a criterion of potential consequences of liability of an Internet portal for unlawful comments of its visitors and set certain general waymarks, which would apply to cases of this kind. Research methodology – The European Court of Human Rights has ruled in four cases (Delfi AS v. Estonia, MTE & Index v. Hungary, Pihl v. Sweden and Tamiz v. the United Kingdom) on whether civil liability can be justified to the website operators for anonymous comments made on their portals that violate the right to privacy. One of the criteria of such evaluation was the possible negative consequences of the civil liability of these entities, but its content and meaning have not been thoroughly studied in the doctrine. Therefore the authors analyse the content of this criterion on the basis of a comparative method. Taking into account the legal context of this study, specific methods of legal interpretation are used in this article (such as, systemic, teleologic, histrorical). Findings – Authors conclude that addressing the civil liability of website operators for damages caused by anonymous comments violating the right to privacy must consider not only the financial, and not only ad hoc, short- and long-term adverse effects of the website operators in general, but the impact of the ruling on the concept of free media and other property and non-material consequences for a democratic society as a whole. Research limitations – This article deals with one criteria for the application of civil liability of website operators for the infringement of an individual’s right to privacy by anonymous comments, that is – the possible negative consequences of the civil liability of these entities. That is the continuation of the authors’ research on the topic of website operator’s liability for unlawful anonymous comments. Practical implications – The research reveals that the consequences of applying the civil liability to the website operator are conditions for assessment of extent of the already existing civil liability; therefore, the criteria of the consequences that arose and / or could arise to website operator are not to be considered as factors justifying the application of civil liability, but rather as factors determining, i.e. extending or limiting, the extent of civil liability. Originality/Value – The vacuum of a consistent concept of assessing the behavior of website operators in response to unlawful comments poses a threat not only to the sustainability of website operators as business or public interest entities, but also to the stability of the legal system as a whole. It is therefore important to disclose the content of elements of assessment of the necessity of restricting the freedom of expression of website operators in a democratic society, which are unregulated and formulated only in the case law of the ECtHR, and which have been applied in national courts for horizontal civil liability claims for anonymous comments. There are no previous research that would focus on these issues.
Highlights
Freedom of expression in various international and national legislation – Article (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article (1) of the Charter of Fundamental Rights (2016), Article 19 of the Universal Declaration of Human Rights (2006), Article 4 (1) of the Republic of Lithuania Law on Public Information (1996) – generally defined as the right to freely express one’s opinion, thoughts and beliefs and to freely gather, receive and impart information and ideas
The limits of freedom of expression in private law for both actual commentators and website operators are determined by the dynamic and multifaceted nature of the right to privacy (Oster, 2015), the breach of which may result in civil liability (Norkūnas, 2013)
The managers are not the authors of unauthorized comments (Stalla-Bourdillon, 2017), and the legislation does not oblige them to monitor all comments posted, which raises the question of when civil liability for anonymous comments infringing the privacy rights of third parties applies may be legally justified for website operators
Summary
Freedom of expression in various international and national legislation – Article (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article (1) of the Charter of Fundamental Rights (2016), Article 19 of the Universal Declaration of Human Rights (2006), Article 4 (1) of the Republic of Lithuania Law on Public Information (1996) – generally defined as the right to freely express one’s opinion, thoughts and beliefs and to freely gather, receive and impart information and ideas. The limits of freedom of expression in private law for both actual commentators and website operators are determined by (in addition to the categories of state security, constitutional order or public protection, territorial integrity, public order, human health and morality which are provided by law and indispensable in a democratic society) the dynamic and multifaceted nature of the right to privacy (Oster, 2015), the breach of which may result in civil liability (Norkūnas, 2013). The managers are not the authors of unauthorized comments (Stalla-Bourdillon, 2017), and the legislation does not oblige them to monitor all comments posted, which raises the question of when civil liability for anonymous comments infringing the privacy rights of third parties applies may be legally justified for website operators (van der Sloot, 2016). It is for national courts to balance the rights and obligations of webmasters, Internet users and addressees
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