16
MAGYAR TARTALOMSZOLGÁLTATÓK EGYESÜLETE AND INDEX.HU ZRT
v. HUNGARY JUDGMENT
impugned comments were injurious towards the natural person behind the
company and that, in this sense, the decisions of the domestic courts
intended to protect, in an indirect manner, that person from defamatory
statements. The Court will therefore proceed under the assumption that –
giving the benefit of the doubt to the domestic courts’ stance identifying a
valid reputational interest – there was to be a balancing between the
applicants’ Article 10 rights and the plaintiff’s Article 8 rights.
68. The Court has already had occasion to lay down the relevant
principles which must guide its assessment in the area of balancing the
protection of freedom of expression as enshrined in Article 10 and the
protection of the reputation of those against whom allegations were made, a
right which, as an aspect of private life, is protected by Article 8 of the
Convention. It identified a number of relevant criteria, out of which the
particularly pertinent in the present case, to which the Court will revert
below, are: contribution to a debate of public interest, the subject of the
report, the prior conduct of the person concerned, the content, form and
consequences of the publication, and the gravity of the penalty imposed on
the journalists or publishers (see Couderc and Hachette Filipacchi Associés
v. France [GC], cited above, § 93; Von Hannover v. (no. 2), cited above,
§§ 108 to 113, ECHR 2012; and Axel Springer AG, cited above, §§ 90-95,
7 February 2012). At this juncture the Court would add that the outcome of
such a balancing performed by the domestic courts will be acceptable in so
far as those courts applied the appropriate criteria and, moreover, weighed
the relative importance of each criterion with due respect paid to the
particular circumstances of the case.
69. In the case of Delfi AS, the Grand Chamber identified the following
specific aspects of freedom of expression in terms of protagonists playing
an intermediary role on the Internet, as being relevant for the concrete
assessment of the interference in question: the context of the comments, the
measures applied by the applicant company in order to prevent or remove
defamatory comments, the liability of the actual authors of the comments as
an alternative to the intermediary’s liability, and the consequences of the
domestic proceedings for the applicant company (see Delfi AS, cited above,
§§ 142-43).
70. These latter criteria were established so as to assess the liability of
large Internet news portals for not having removed from their websites,
without delay after publication, comments that amounted to hate speech and
incitement to violence. However, for the Court, they are also relevant for the
assessment of the proportionality of the interference in the present case, free
of the pivotal element of hate speech. It is therefore convenient to examine
the balancing, if any, performed by the domestic courts and the extent to
which the relevant criteria (see Von Hannover (no. 2), cited above, §§ 108
to 113) were applied in that process, with regard to the specific aspects