Cyberlibel Cases before the European Court of Human Rights: Estimating Possible Outcomes
| Published date | 01 March 2001 |
| DOI | 10.1177/092405190101900102 |
| Author | Dragos Cucereanu |
| Date | 01 March 2001 |
| Subject Matter | Part A: Articles |
Part A: Articles
Cyberlibel Cases before the European Court
of
Human Rights:
Estimating Possible Outcomes
Dragos Cucereanu'
Abstract
Internetdefamation, or cyberlibel, has becomean increasingly widespread
and
alarmingside
of
online expression. This has lead to controversies concerning the way
of
responding to this
new challenge in defamation law. Such controversies persist, as
lawmakers
and
courts in
the Council
of
Europe Member States vary in their solutions.
The authorsearches
for
uniformity in regulating cyberlibel in Europe, by estimating how
the European Court
of
Human Rights could decide such cases, based on analogy with its
previous case law, as well as the law
and
practice
of
those States that have addressed the
issue. It concludes that the Court may take into consideration the specificity
of
Internet, while
mostly in line with its previous case law, byfurther developing it. The article proposes a list
of
criteria that might help deciding cyberlibel cases,
and
analyses specific ways
of
determining their applicability
and
effect.
Introduction
Defamation law, a traditionally problematic area of regulation and a prolific source
of
litigation, especially in Europe and even more now in the latter's new Eastern democracies,
has encountered a fresh and serious challenge in the form
of
online defamation, or cyberlibel
as it is also called.
Internet has increased dramatically the power
offree
speech. It has contributed to the way
people exchange information, the way they express themselves, and also the way they defame
each other. The change is both quantitative (the number
of
messages transmitted, as well as
the number
of
speakers, can not even be compared to that
ofthe
previous era) and qualitative
(Internet changes the quality
of
audiences,
of
ways to send and receive information and even
the nature and value
of
information itself). Thus, online defamation may cause much more
damage than traditional defamation.
Cyberlibel has become a sad and yet unavoidable side
of
freedom
of
expression on the
Internet. It has generated much
of
the early litigation relating to the Web in the national
courts and has raised controversies as to the best way
of
responding to this phenomenon.
While there is still comparatively little practice in this regard in Europe, it is good to know
what might be the attitude towards cyberlibel under such an important instrument as the
European Convention on Human Rights and Fundamental Freedoms.
Unless a good solution is given to cyberlibel issues, which would take into consideration
the specificity
of
Internet speech, the balance that must always be struck between freedom
of
expression and the protection
of
reputation might not be fair, resulting in excessive
Dragos Cucereanu, LL.M., lecturer at the International University
of
Moldova, international law adviser at
the Supreme Court
of
Justice
of
the Republic
of
Moldova
Netherlands Quarterly
of
Human
Rights,
Vol.
19/1,5-20,2001.
(D Netherlands Institute
of
Human
Rights
(SIM).
Printedin the
Netherlands.
5
NQHR 112001
restriction
of
either
ofthe
two rights, in lack
oflegal
predictability and in impediments to the
development
ofInternet.
Some
of
the early US case-law demonstrates that danger.
Moreover,
due
to its global nature, Internet can be efficiently regulated only through
international co-operation and regulation. Determining ways in which the European
Convention may apply to cyberlibel would imply having acommon set
of
standards for all
Council
of
Europe Members and thus ensure consistency. However, this article does not deal
with certain other issues related to efficiency
of
regulation
of
online activities, first
of
all
jurisdiction over Internet publications.
Neither the European Court, nor the Commission has ever examined any Article 10 case
where the specificity
of
an international computer network such as the Internet would be an
important element
of
the decision. And yet such cases are bound to be brought before the
Court, as they were filed in the national courts
of
anumber
of
States, including those
of
the
Council
of
Europe.'
The present work examines Article 10 case law
of
the European Court in orderto estimate
how it can be applied - by analogy - to defamation online.
The
Courthas paid attention to basically two groups
of
elements in assessing the necessity
of
interference with freedom
of
expression:
1. the content
of
expression (whether it is political expression, or expression addressing
issues important for the society, or whether they are statements
of
facts and value-
judgements,
etc.);
and
2. the background
of
the expression.
The first criterion is the determining one, and Internet does not change anything in that
respect. However, the presence
of
background elements and their combination influences the
degree
of
permissible interference with freedom
of
expression and even the necessity thereof.
And the background, as appears from the
Court's
case law,
may
include elements such as the
status
of
the parties, the audience
of
the expression, or circumstances
of
dissemination
of
the
statements.
Before examining each
of
these groups
of
elements, one has to clarify that this work
identifies some
of
the principles determined by the Court and then applies them by analogy
to other cases. It is submitted here that many
of
Article 10 principles found by the Court often
do not depend on the specific character
of
the case and may be used interchangeably whether
or not the principle arises from a defamation case.'
Furthermore, on occasion the national law and practice
of
several Council
of
Europe
Member States is cited to show the presence
of
substantial similarity (or lack thereof) as a
basis for further developing the interpretation
of
Article 10.
The
Court has itself used this
approach in a number
of
cases. 3It is true, there is not sufficient practice
of
all Members
of
See, for instance, the French case
of
Estelle Hallyday vs Valentin Lacambre, arret rendu en refere Ie 10
fevrier 1999; the ItalianIsolenella Rete, athltp://www-psych.stanford.edu/-arturo/grave.htrnl#crime (visited
on 24 Apri11999). Most of non-European cases were examined by US courts. The leading ones were Zeran
vs America Online. Inc., 129 F.3d 327 (4th Cir. 1997); Stratton Oakmont, Inc. vs Prodigy Services Co., 23
Media L. Rep. (BNA) 1794 (N.v. Sup. Ct. 1995);American Civil Liberties Union
vsReno,
paras 1-48,73-89,117-119 (E.D. Pa. 1996).
See, for instance, the Court applying the principle
of
special status of the press as determined in a 'protecting
the judiciary' case to a defamation case - Sunday Times vs UK, No. I, Series A No. 30 and Lingens vs
Austria, Series A No. 103, respectively.
Worm
vsAustria
(83/1996/702/894), 29 August 1997, para. 49; Casado Coca, Series A No. 285, paras 35-
37,51-57, etc.
6
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