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.