May 20, 2019

The applicant, Mona Høiness, a Norwegian national, was a well-known lawyer. She issued proceedings in the Norwegian courts against Hegnar Media AS and Hegnar Online for defamation. She claimed that her honour had been infringed because of sexual harassment in three comments made anonymously on Hegnar Online’s forum.

The defendants argued that they had not been aware of the comments and that they had removed them as soon as they had become aware of them. At first instance, the court ruled in favour of the defendants. Ms Høiness appealed, unsuccessfully. She was refused permission to appeal to the Supreme Court, so Ms Høiness applied to the European Court of Human Rights, arguing that her right to protection of her reputation under Article 8 had been violated.

The ECtHR noted first that protection to reputation came within the meaning of Article 8.

In terms of balancing the competing interests under Article 8 and Article 10 (freedom of expression), the ECtHR noted certain specific aspects of freedom of expression as being relevant, such as the context of the comments, the measures applied by Hegnar Online 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 ECtHR noted that the Norwegian court had, at first instance, found the comments not to constitute defamation, while on appeal the court had deemed it unnecessary to take a stand on whether they were defamatory or not. The ECtHR also said that it was not obliged to examine the nature of the comments in depth, as they did not amount to hate speech or incitement to violence.

The ECtHR accepted Ms Høiness’s argument that she would have faced considerable obstacles in attempting to pursue claims against the anonymous individuals who had written the comments. It also noted that the debate forums had not been integrated into the presentation of news and were not part of the editorial content.

The ECtHR noted that Hegnar Online had an established system of moderators who monitored content. Further, readers could click on “warning buttons”, and use other means such as email, to notify the platform of inappropriate content. This system had worked well. One of the comments had even been deleted on the moderator’s own initiative before receipt of notification by Ms Høiness’s counsel. On appeal, the Norwegian court had found that Hegnar Online and its editor had acted appropriately.

In the ECtHR’s view, the Norwegian courts had reviewed all relevant issues. In line with the principles set out in Delfi AS v Estonia, there were no reasons for the ECtHR to substitute a different finding. Accordingly, the ECtHR found that the Norwegian courts had acted within their margin of appreciation when seeking to establish a balance between Ms Høiness’s rights under Article 8 and Hegnar Online’s opposing right to freedom of expression under Article 10. There had been no violation of Article 8. (Høiness v Norway [2019] ECHR 221 (19 March 2019) — to read the judgment in full, click here.