In its order No.IV/5/2013.the Constitutional Court stipulates that the liability of internet content providers or operators of forums is objective regarding the non-moderated infringing comments. According to the judicial body, the intermediary internet service providers may be held liable when disclosing comments, regardless of whether they had monitoring obligation as to their content or not.
The legal determination of internet service providers´ liability has always raised questions of fundamental significance in the world of internet. This was faced in the case underlying the order of the Constitutional Court, where an internet content provider (hereinafter: ICP) initiating constitutional complaint had disclosed an opinion in its homepage concerning the advertising practice of one realtor company.
The realtor company had filed a petition against the ICP for the infringement of its personal rights. According to its opinion the content of the articles is false and along with the comments made thereto, infringes its right to the protection of good reputation.
According to the courts of first and second instance the article of the ICP is not unlawful, however, it provided platform for serious violating and degrading comments, hence it conducted the infringement of good reputation by rumor. The court added that the fact that the comments were removed by the ICP without delay, has no significance when determining the infringement.
The ICP had pointed out that according to the effective legal regulations pertaining to the information society, it is in the present case deemed to be an intermediary service provider;therefore, it shall not be responsible for the contents of the comments,since the intermediaries are not obliged to moderate the blogs and the comments, or to monitor theircontent, such internet service providers provide exclusively storage and platform forplacing the content. Comments appear on the websiteby one click, without the assistance and supervisionof the intermediary.
The Association of Hungarian Content Providers (hereinafter: AHCP), who intervened to the case in the interest of the ICP to win the lawsuit and turned to the Constitutional Court, whilst it found injurious that according to the court decisions it is infringingthat someone is ensuring possibility on its homepage for the placement of comments without monitoring them, whereas it must count with the possibility that there may be an infringing comment among them. According to the constitutional complaint the court decisions infringe the freedom of express of opinion and the freedom of press. It held that it is a necessary and proportionate restriction of the freedom of press when the court qualifies the opinions infringing good reputation, unlawful; however, it is un-proportionate, if the person who has no influence on the content of such comment shall be held liable as well, since it provides exclusively the platform for disclosing the comment.
In the view of the AHCP, whereas being a fundamental right of communication,the aim of the right of expressing opinionis to ensure the discussion of „public matters”, „the possibility of self-expression in a social context”.These are the internet forums and comments, where users may express their thoughts and opinions. As per the AHCP, it is the significant element of the freedom of the expression of opinion that someone may disclose comment on the internet without prior moderation, hence if only previously moderated comments could appear, opinions would not meet and an important element of the clashes ofopinions would disappear.
However, according to the Constitutional Court, the complaint was not justified.
At the beginning of its order it refers to the currently effective laws, pursuant to which the liability of internet service providers and intermediaries is different. While the internet service provider is responsible for the unlawful information made available, since it creates and publishes it by itself, on the other hand the intermediary - although as a general rule it is liable -, in the existenceof certain conditions may be exempted from the responsibility, according to the governing act it is obliged to monitor the information only forwarded and stored by it.
Furthermore, the Constitutional Court stipulates on conceptual basis that the Fundamental law ensures and protects free communication, regardless of its content of value or truth, thus the constitutional protection extends to all opinions no matter its content. It elaborates further that the freedom of press grants constitutional protection to the freedom of spreading information,opinion; does not protect the content of the opinion, but its forward to the public. Therefore, the determination of the liability of the operator of the internet page, without no doubt restricts the freedom of press extending as well to the internet communications.
It also points outthat there are two forms of comments: the moderated and non-moderated comments. The prior are preliminarily examined by the webpage operator and if it finds it unlawful or contrary to its own moderating principles,will not disclose it. The latter are not moderated by the operator, it is not in its duty either.
Nonetheless, since mainly the person of the actual infringer „commenter” is unknown, the liability is on the operator of the webpage. The moderated comment, if it is infringing, triggers the same legal consequence as if it was not monitored previouslyor subsequently.The moderation of the comments does exempt from the liability or responsibility for unlawful communications. The liability for the unlawful comments (and the obligation for damages in certain case) is independent from moderating: it is based on the sole fact of the unlawful comment.
The Constitutional Court stipulates thereby in its order that it does not deem it justified to differentiate between the moderated and non-moderated comments. According to its opinion, if the internet providers undertaking moderating are liable for the illegal comments appearing on their page, then determining the infringement against the intermediary operators of the pages not undertaking moderating shall be proportionate as well. Question arises as to whether the modern form of expressing opinion will be limited in the light of the findings of the above order and whether the operation of non-moderated internet commenting in Hungary will be become questionable?
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