Human rights court: blog not responsible for negative reaction from third party

The European Court of Human Rights in Strasbourg has ruled that a blog in which a person commented on another person with an accusation was not responsible or liable for that comment.

The case concerns a Swedish blog that accused a Swedish man, Daniel Pihl, of being involved in a Nazi political party in a blog post. A day later, an anonymous person posted a spiky response to this blog post saying that Pihl is “a real hash junkie according to several people.” Nine days later, Pihl posted a response denying the charges. He also demanded that the negative allegations be removed.

A day later, the website removed the blog post and negative commentary, apologizing because the blog post was allegedly based on misinformation. Pihl found this insufficient, because the allegations could easily be found via search engines. He sued the blog for the symbolic amount of one Swedish Krona. Pihl found that there was defamation and that the blog waited too long before removing the blog post and the negative response.

The regional court in Sweden rejected Pihl’s claim. Although the judge found the negative comment defamatory, he saw no legal basis on which to hold the blog responsible for the lack of a faster rectification. Pihl was also unsuccessful on appeal. The highest Swedish court did not want to hear the case, after which Pihl took the case to the Swedish ombudsman.

Pihl argued that the Swedish state had not complied with active obligations under the right to privacy under the ECHR because the courts did not hold the blog liable for defamation. He felt that the Swedish laws make it impossible for him to hold the website responsible for the negative comments, and in doing so the Swedish state is said to have contributed to violating its right to privacy enshrined in the ECHR. The ombudsman also ruled against Pihl, after which he took the case to the European Court of Human Rights.

The European Court first found that, while the negative comment was offensive and indeed could be seen as defamation, it was insufficient to qualify it as incitement to hatred or violence. According to the Court, the Swedish authorities have also struck a good balance between this right to privacy and freedom of expression. Because the negative comments did not incite hatred or violence, the blog was small in size, run by a non-profit organization, and the blog deleted the comment and blog post the day after Pihl’s complaint, the Court ruled that the Swedish courts have rightly held that the right to privacy has not been violated.

With this ruling, the Court does not seem to require sites, at least not non-profit organizations with small websites, to monitor comments posted in advance or to have a notice-and-take-down system. The blog made it clear on its website that they did not check comments posted before they are published. In addition, this ruling makes it clear that a website can only be actually held liable if it does not take action after comments from third parties are posted that clearly violate the law and really go too far, for example if it incites hatred or violence. If it comes to slander or libel and the website responds to it by removing the response, the website can therefore not simply be held liable.