18
MAGYAR TARTALOMSZOLGÁLTATÓK EGYESÜLETE AND INDEX.HU ZRT
v. HUNGARY JUDGMENT
been tricked by the company. Indeed, the remarks can be considered as an
ill-considered reaction (compare and contrast Palomo Sánchez and Others
cited above, § 73). They were posted in the context of a dispute over the
business policy of the plaintiff company perceived as being harmful to a
number of clients.
76. Furthermore, the expressions used in the comments were offensive,
one of them being outright vulgar. As the Court has previously held, offence
may fall outside the protection of freedom of expression if it amounts to
wanton denigration, for example where the sole intent of the offensive
statement is to insult (see Skałka v. Poland, no. 43425/98, § 34, 27 May
2003); but the use of vulgar phrases in itself is not decisive in the
assessment of an offensive expression. For the Court, style constitutes part
of the communication as the form of expression and is as such protected
together with the content of the expression (see Uj, cited above, § 23).
77. Without losing sight of the effects of defamation on the Internet,
especially given the ease, scope and speed of the dissemination of
information (see Delfi AS, cited above,§ 147), the Court also considers that
regard must be had to the specificities of the style of communication on
certain Internet portals. For the Court, the expressions used in the
comments, albeit belonging to a low register of style, are common in
communication on many Internet portals – a consideration that reduces the
impact that can be attributed to those expressions.
(iii) Liability of the authors of the comments
78. As regards the establishment, in the civil proceedings, of the
commentators’ identities, the Court notes that the domestic authorities did
not at all address its feasibility or the lack of it. The Constitutional Court
restricted its analysis to stating that the injured party was unlikely to receive
any compensation without the liability of the operator of the Internet portal.
At this juncture, the Court notes that there is no appearance that the
domestic courts enquired into the conditions of commenting as such or into
the system of registration enabling readers to make comments on the
applicants’ websites.
79. The national courts were satisfied that it was the applicants that bore
a certain level of liability for the comments, since they had “disseminated”
defamatory statements (see paragraph 42 above), however without
embarking on a proportionality analysis of the liability of the actual authors
of the comments and that of the applicants. For the Court, the conduct of the
applicants providing platform for third-parties to exercise their freedom of
expression by posting comments is a journalistic activity of a particular
nature (see Delfi AS, cited above, §§ 112-13). Even accepting the domestic
courts’ qualification of the applicants’ conduct as “disseminating”
defamatory statements, the applicant’s liability is difficult to reconcile with
the existing case-law according to which “punishment of a journalist for