29 Dec Obligation do disclose personal data of news commentators was not in accordance with the Convention

In the case of Standard Verlagsgesellschaft mbH v. Austria (no. 3) (application no. 39378/15, 07.12.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned court orders for the applicant media company to reveal the sign-up information of registered users who had posted comments on its website, derStandard.at. When registering as a user on the website, which allows commenting on the articles, individuals had to provide their names and email addresses and optionally their postal addresses. The website made clear that this information would not be seen publicly and that the applicant company would only disclose it if required to do so by law. The court order to reveal data had followed comments allegedly linking politicians to, among other things, corruption or neo-Nazis, which the applicant company had removed, albeit refusing to reveal the information of the commenters.

Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, the applicant company complained of the order to disclose the personal details of users of its news portal.

The applicant company argued that the user data in question constituted journalistic sources and were thus protected by editorial confidentiality in the same way as were data of authors of readers’ letters published in a newspaper. The Government argued that the applicant company’s role as a host provider offering a discussion forum on its website differed from its role as a publisher of articles. As a host provider, pursuant to the E-Commerce Act it had a duty to disclose certain data to individuals who credibly claimed an overriding legal interest.

The Court found that as the commenters had addressed the public and not a journalist, they could not be considered to have been journalistic “sources”. However, there was a link between the applicant company’s publication of articles and hosting comments on those articles on its news portal. The Court also considered that an obligation to reveal user information would have a chilling effect on contribution to debate. It reiterated that the Convention did not provide for an absolute right to online anonymity. However, anonymity had long been a means of avoiding reprisals or unwanted attention. As such, it was capable of promoting the free flow of opinions, ideas and information including, notably, on the Internet. The Court observed that this anonymity would not be effective if the applicant company could not defend it by its own means. Its lifting had therefore interfered with the applicant company’s right to freedom of the press. 

The Court also considered that the comments at issue had been neither hate speech nor incitement to violence, and had been about two politicians and a political party in a political debate of public interest. It had been the job of the domestic courts in this case to balance the competing interests: they had failed to do so. The Court considered that the domestic courts had overall failed to balance the rights at issue and had failed to give sufficient reasons to justify the interference with the applicant company’s rights. The court orders had thus not been “necessary in a democratic society”, and there had therefore been a violation of Article 10 of the Convention.

References from the official website of the European Court of Human Rights