PIHL v. SWEDEN DECISION
7
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 company (see Magyar Tartalomszolgáltatók
Egyesülete and Index.hu Zrt, cited above, § 69, with reference to Delfi AS,
cited above, §§ 142-143).
29. The question is thus whether, in the present case, the State has
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 of the Convention.
30. As regards the context of the comment, the Court notes that the
underlying blog post accused the applicant, incorrectly, of being involved in
a Nazi party. However, the post was removed and an apology published
when the applicant notified the association of the inaccuracy of the post.
The applicant sued the association in relation to this blog post before the
national courts but the Court has not been informed about the outcome of
these proceedings. Moreover, the Court observes that the comment about
the applicant did not concern his political views and had nothing to do with
the content of the blog post. It could therefore hardly have been anticipated
by the association.
31. In relation thereto, the Court attaches importance to the fact that the
association is 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 (contrast Delfi
AS, cited above, §§ 115-116). As the Court found in Magyar
Tartalomszolgáltatók Egyesülete and Index.hu Zrt (cited above, § 82),
expecting the association to assume that some unfiltered comments might
be in breach of the law would amount to requiring excessive and impractical
forethought capable of undermining the right to impart information via
internet.
32. As regards the measures taken by the association to prevent or
remove defamatory comments, the Court notes that the blog had a function
through which the association was notified when comments were posted on
it. However, it was clearly stated on the blog that the association did not
check such comments before they were published and that commentators
were responsible for their own statements. Commentators were also
requested to display good manners and obey the law. Moreover, the Court
observes that the association removed the blog post and the comment one
day after being notified by the applicant that the post was incorrect and that
he wanted the post and the comment removed. The association furthermore
posted a new blog post with an explanation for the error and an apology.
The comment had been on the blog for about nine days in total (contrast
Delfi AS, cited above, § 19, where the clearly unlawful comments were
removed only about six weeks after their publication).