MAGYAR TARTALOMSZOLGÁLTATÓK EGYESÜLETE AND INDEX.HU ZRT
v. HUNGARY JUDGMENT
19
assisting in the dissemination of statements made by another person in an
interview would seriously hamper the contribution of the press to discussion
of matters of public interest and should not be envisaged unless there are
particularly strong reasons for doing so” (see Jersild, cited above, § 35;
Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001-III; and, mutatis
mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31,
14 December 2006, Print Zeitungsverlag GmbH v. Austria, no. 26547/07,
§ 39, 10 October 2013; and Delfi AS, cited above, § 135).
(iv) Measures taken by the applicants and the conduct of the injured party
80. The Court observes that although the applicants immediately
removed the comments in question from their websites upon notification of
the initiation of civil proceedings (see paragraphs 15 above), the Kúria
found them liable on the basis of the Civil Code, since by enabling readers
to make comments on those websites and in connection to the impugned
article, they had assumed objective liability for any injurious or unlawful
comments made by those readers. As the Budapest Court of Appeal held,
the circumstances of removing the comments were not a matter relevant for
the assessment of objective liability but one for the assessment of any
compensation (see paragraph 20 above).
81. The Court observes that the applicants took certain general measures
to prevent defamatory comments on their portals or to remove them. Both
applicants had a disclaimer in their General terms and conditions stipulating
that the writers of comments – rather than the applicants – were accountable
for the comments. The posting of comments injurious to the rights of third
parties were prohibited. Furthermore, according to the Rules of moderation
of the second applicant, “unlawful comments” were also prohibited. The
second applicant set up a team of moderators performing partial follow-up
moderation of comments posted on its portal. In addition, both applicants
had a notice-and-take-down system in place, whereby anybody could
indicate unlawful comments to the service provider so that they be removed.
The moderators and the service providers could remove comments deemed
unlawful at their discretion (see paragraphs 7-10 above).
82. The domestic courts held that, by allowing unfiltered comments, the
applicants should have expected that some of those might be in breach of
the law. For the Court, this amounts to requiring excessive and
impracticable forethought capable of undermining freedom of the right to
impart information on the Internet.
83. The Court also observes that the injured company never requested
the applicants to remove the comments but opted to seek justice directly in
court – an element that did not attract any attention in the domestic
evaluation of the circumstances.
Indeed, the domestic courts imposed objective liability on the applicants
for “having provided space for injurious and degrading comments” and did