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ISPs protected again by the ECHR

10 February 2016

Two Hungarian service providers (an internet news portal and the self-regulatory body of Hungarian ISPs) have been relieved of liability for the posting of un-moderated comments about an individual on a news website.

The ECHR confirmed that the Hungarian courts had not adequately balanced the Article 8 rights of the claimant on one hand, and freedom of expression under Article 10 on the other. Interestingly, the Hungarian implementation of the e-commerce directive precluded the defendants from relying on the “intermediary” defence as they were not providing goods and services. The UK position would permit this defence as the defendants were “mere conduits”.

Operators should be aware that the ECHR sought to distinguish between speech affecting reputation and ‘hate speech’, which it suggested ISPs should actively monitor and be responsible for, despite a lack of actual notice. However, following Delfi, the level of monitoring required to discharge their obligations is likely to be lower for smaller operators.

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