ZÖCHLING v. AUSTRIA JUDGMENT
§ 129). However, although the Court of Appeal noted in its decision that
when assessing the obligations of the media owner, his or her conduct, the
organisation of the news portal and the degree of violation of law (Schwere
der Rechtsverletzung) had to be taken into consideration, it subsequently did
not examine the size of the portal or the extent of the company’s commercial
interest in the posting of the comments (see Sanchez, cited above, § 166), nor
did it consider the Regional Criminal Court’s finding that the article the
comments were based on intentionally stirred up antipathies against the
applicant (see paragraph 6 above). The Court of Appeal did not refer to the
content of the comments either although they clearly amounted to hate speech
and contained incitements to violence (see Sanchez, cited above, § 166;
contrast, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited
above, § 77; Pihl v. Sweden (dec.), no. 74742/14, § 37, 7 February 2017;
Høiness v. Norway, no. 43624/14, § 69, 19 March 2019, in all of which cases
the content of the impugned comments was found not to amount to hate
speech).
13. As to the measures applied by the company to prevent or remove
defamatory content, the comments in issue were deleted after having been
notified to the company by the applicant (see paragraph 5 above). The Court
of Appeal did not examine the possibility for the company to operate a
notice-and-take-down system which could have been a useful tool for
balancing the rights and interests of all those involved (Delfi AS, cited above,
§ 159). In cases where third-party user comments were in the form of hate
speech and direct threats to the physical integrity of individuals, as in the
instant case (see paragraph 4 above), the rights and interests of others and of
society as a whole may entitle States to impose liability on Internet news
portals without contravening Article 10 if they failed to take measures to
remove clearly unlawful comments without delay, even without notice from
the alleged victim or from third parties (ibid.) In its recent judgment in the
case of Sanchez (cited above, § 190), the Court reiterated that a minimum
degree of subsequent moderation or automatic filtering would be desirable in
order to identify clearly unlawful comments as quickly as possible and to
ensure their deletion within a reasonable time, even where there has been no
notification by an injured party. In the instant case, the Court of Appeal did
not consider possible measures to be applied by the company to prevent
defamatory content on its portal or to remove such content. It did not have
regard to the Regional Criminal Court’s finding that offensive comments
about the applicant had repeatedly been posted under articles published on
the company’s portal since September 2015 (see paragraph 6 above) so that
the company could have anticipated further offences. It did not assess whether
informing users that unlawful comments were merely “undesirable” rather
than prohibited (see paragraph 2 above) could be regarded an effective
measure to prevent hate speech.
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