The domestic courts’ refusal to impose liability on an Internet forum for anonymously posted comments was not in breach of Article 8


Høiness v. Norway 19.03.2019 (no. 43624/14)

see here


The case concerned the domestic courts’ refusal to impose civil liability on an Internet forum host
after vulgar comments about Ms Høiness had been posted on the forum.

The Court found in particular that the national courts had acted within their discretion (“margin of
appreciation”) when seeking to establish a balance between Ms Høiness’s rights under Article 8 and
the opposing right to freedom of expression under Article 10 of the news portal and host of the
debate forums. Moreover, the domestic courts’ rulings on litigation costs being awarded to the
defendants had not as such violated Article 8.


Article 8


The applicant, Mona Høiness, is a Norwegian national who was born in 1958 and lives in Oslo

Ms Høiness, who is a well-known lawyer, began civil proceedings before the Oslo City Court in May
2011 against the Hegnar Media AS company and Mr H., an editor working for the Internet portal
Hegnar Online, for defamation. She stated that her honour had been infringed because of sexual
harassment in three comments made anonymously in Hegnar Online’s forum, which was
incorporated into Hegnar Media AS. The defendants argued that they had not been aware of the
comments and that they had been removed as soon as they had become aware of them. In January
2012 the City Court ruled in favour of the defendants. It held that the comments in question had not
amounted to unlawful defamation as they had been incapable of offending either Ms Høiness’s
honour or her reputation.

Ms Høiness appealed. The High Court held in October 2013 that Ms Høiness’s claim for
compensation could not succeed unless the defendants had acted with sufficient culpability. In that
regard it noted, amongst other things, that there were “warning buttons” on the website, which
readers could click on in order to react to comments. The High Court also upheld the City Court’s
decision on litigation costs and awarded the defendants 183,380 Norwegian kroner (approximately
20,050 euros). Ms Høiness appealed but leave to appeal to the Supreme Court was refused.


Article 8

The Court reiterated that a person’s right to protection of his or her reputation was encompassed by
Article 8.

It further observed that what was at issue in the case was not an act by the State but the alleged
inadequacy of the protection afforded by the domestic courts to Ms Høiness’s private life. In
addition to a negative obligation there might be positive obligations inherent in effective respect for
private life.

As concerns competing interests under Article 8 and Article 10, the Court had established general
principles, as summarised in Delfi AS v. Estonia. The Court would usually afford a wide margin if the
State was required to strike a balance between competing interests or competing Convention rights.
In making this proportionality assessment, the Court had also identified specific aspects of freedom
of expression as being relevant, such as the context of the comments, the measures applied by the
company in order to prevent or remove defamatory comments, the liability of the actual authors of
the comments as an alternative to the intermediary’s liability, and the consequences of the domestic
proceedings for the company.

The Court noted that the comments made about Ms Høiness had been found by the City Court not
to constitute defamation under national law, while the High Court had deemed it unnecessary to
take a stand on whether they were defamatory or not. The Court also considered that it was not
obliged to examine the nature of the comments in depth as they in any event did not amount to
hate speech or incitement to violence.

Secondly, the Court saw no reason to contest Ms Høiness’s allegation that she would have faced
considerable obstacles in attempting to pursue claims against the anonymous individuals who had
written the comments. As to the context in which the comments were made, the Court observed
that the debate forums had not been particularly integrated in the presentation of news and thus
had not appeared to be a continuation of editorial articles.

With respect to the measures adopted by Hegnar Online, there had been an established system of
moderators who monitored content. Moreover, readers had the possibility to click on “warning
buttons”, and warnings by other means, such as email, had also been successful. In the instant case,
one of the comments had even been deleted on the moderator’s own initiative before receipt of
notification by Ms Høiness’s counsel. The High Court had found, upon an overall examination and
assessment of the measures that had been put in place in order to monitor the forum comments, and the specific responses to Ms Høiness’s notifications, that the news portal company and its editor
had acted appropriately.

The Court observed that Ms Høiness’s case had been considered on its merits at two levels of
domestic jurisdiction. The courts had reviewed all the relevant aspects. In line with the principles set
out in Delfi AS v. Estonia, there were no reasons for the Court to substitute a different view for that
of the national courts.

The Court found accordingly that the domestic courts had acted within their margin of appreciation
when seeking to establish a balance between Ms Høiness’s rights under Article 8 and the opposing
right to freedom of expression under Article 10 of the news portal and host of the debate forums.
The Court further noted the considerable amount of litigation costs imposed on Ms Høiness.
However, taking account of the nature of the claim lodged before the national courts and the
subject matter, the Court did not consider that it could call into question the domestic courts’
assessment on costs. The Court was in any event satisfied that the domestic courts had sufficiently
safeguarded Ms Høiness’s rights under Article 8 and there had been no violation of that provision( editing). 


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