Freedom of speech on the Internet: what the ECHR pays attention to
Today, the case law of the European Court of Human Rights is beginning to play a major role in resolving disputes related to the protection of freedom of speech on the Internet by Ukrainian judges.
Alina Pravdychenko, a member of the UNBA Committee on Media and Advertising Law, discussed this issue during the webinar «Freedom of Speech on the Internet: Recent Trends in the ECHR Case Law».
She noted that the right to freedom of speech is one of the basic rights and is guaranteed by a number of international documents and Ukrainian legislation, including on the Internet. Despite the uniformity of the general standards, there are many peculiarities in the regulation of freedom of speech on the Internet, which are used in the ECHR case law.
«The European Court of Human Rights has emphasized that since the potential harm from the dissemination of information on the Internet can be much greater, approaches to regulating freedom of speech online and offline should be different. Thus, in its judgments, the ECHR takes into account both the technical features of social networks, as evidenced by the consideration of cases on the legal nature of the distribution of hyperlinks (reposts) or likes (likes), and the general specifics of information dissemination on the Internet», - the lawyer emphasized.
The ECHR pays special attention to the following points:
1) ease of searching for information on the Internet and accessibility at any time (it takes into account how accessible to the public is sensitive information about specific individuals in each case, whether it is issued in the results of search engines, whether it is contained in archives exclusively for subscribers, whether it is paid for, etc);
2) the period during which the information has been or is available on the Internet (on the one hand, a long duration of information on the World Wide Web reduces its relevance and, consequently, the public interest in obtaining it, which affects decisions in cases on protection of the right to privacy; on the other hand, the longer the information is available on the Internet, the greater the potential harm from it, for example, in cases of hate speech);
3) the size of the potential audience (information contained on the Internet is available to a much larger number of people than, for example, information contained in a printed publication, which is why the court, in particular, takes into account the status of the person who published the content (for example, whether he or she is a well-known blogger or an ordinary user), the number of views of the information, etc);
4) a high degree of anonymity of users (the general principle is that identification of a person creates unwanted attention and deprives him or her of the opportunity to publish information and freely express their opinions, but anonymity should not be absolute, especially in cases of obviously illegal content).
In certain categories of cases, the ECHR also takes into account other aspects, including the negative effects of the constant availability of information on the Internet, the content and form of publication, and the political and social context. In particular, the judgment in the case of Gaponenko v. Latvia is noteworthy, where the ECHR, considering the publication of controversial statements about Latvia's relations with Russia and Western countries on a Facebook page, stated that the facts of Russian aggression against Ukraine and Georgia cannot be ignored. Accordingly, detention may well be a proportionate measure in the context of the need to prevent the repetition of online publications accessible to a wide audience, which could be crimes against the constitutional order.
The ECHR pays special attention to the liability of intermediaries for content published by third parties. In particular, it refers to the responsibility of social networks, bloggers, and news portals for user comments. In this case, both the status of the intermediary (whether it operates on a commercial basis, interferes with the content of publications or simply provides a platform for their placement, etc.) and the measures taken by it (for example, the availability of a system for monitoring and complaints about unlawful comments, the promptness of their removal) are taken into account.
Popular news
Support
Protecting the legal profession, cybersecurity and support for advocates: common themes for the IBA and the UNBA
On September 18, a working meeting was held at the office of the Ukrainian National Bar Association with Executive Director of the International Bar Association (IBA) Mark Ellis. The parties discussed the Ukrainian advocacy profession’s participation in European legal processes, the protection of the UNBA’s digital infrastructure, psychological support for advocates and future areas of cooperation.
Educational events
Tax residency of Ukrainians abroad: what matters
The determination of tax residency for Ukrainians who have been living abroad for an extended period depends on the combination of their personal and economic ties to each country. The established status determines the procedure for reporting income, paying taxes and fulfilling CFC reporting obligations.
War
Are Europe's advocacy associations prepared for a potential war? V. Gvozdiy shared lessons from the Ukrainian experience
The continuity of the bar’s self-governance, the protection of professional registries and archives, as well as equal guarantees of employment for advocates, judges, and prosecutors must be enshrined in advance in legislation in the event of war or another emergency.
Tragic news
Former CCBE President James MacGuill has passed away
The Ukrainian National Bar Association expresses its condolences on the passing of James MacGuill — a renowned Irish advocate and former president of the Law Society of Ireland and the Council of Bars and Law Societies of Europe (CCBE).
Educational events
How DISC helps manage «tigers», «monkeys», «elephants» and «turtles»
The same instruction from a manager may motivate one employee to take action, while leaving another without the necessary guidance. People perceive work tasks differently: for some, a deadline and the expected outcome are enough, while others need explanations, time or a detailed plan.
Guarantees of the practice of law
The Council of Europe Convention will strengthen constitutional guarantees of human rights – M. Stavniychuk
The exclusive right of an advocate to represent another person in court, as enshrined in the Constitution, should be viewed as an integral part of the mechanism for protecting human rights in Ukraine. Furthermore, ratification of the Council of Europe Convention on the Protection of the Professions of Lawyer could strengthen the substance of this and other guarantees.
Legislation
The Verkhovna Rada is preparing a bill to implement the Convention on the Protection of the Professions of Lawyer
Members of Parliament plan to introduce a bill in the near future to implement the main provisions of the Council of Europe Convention on the Protection of the Professions of Lawyer. This parliamentary initiative may also prompt the government to expedite the preparation of the ratification package.
Educational events
What an advocate should consider when a fee dispute escalates into a complaint to the QDBC
If an advocate files a lawsuit seeking to recover fees from a client, the client may in turn file a complaint with the High Qualification and Disciplinary Commission of the Bar in an effort to compel the advocate to withdraw the lawsuit. How do the advocacy’s disciplinary bodies handle such cases?
Publications
Vasyl Kolishnyi, «Law and Business» Supporting mental health should become part of the professional culture of the Bar, - H. Udovenko
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection