Intermediary liability for online user comments under the european convention on human rights

In the recent judgments of Delfi AS v Estonia and Magyar T.E. and Index.hu Zrt v Hungary, the European Court of Human Rights for the first time sought to clarify the limits to be imposed on intermediary liability regimes for online user comments and the factors to be assessed in the determination of the appropriate balance between the Article 10 speech rights of online intermediaries and the Article 8 reputational rights of those targeted by unlawful user comments. In doing so, the Court has left open to Contracting States the choice of intermediary liability regime to be adopted at the domestic level. The author, a judge of the Strasbourg Court, comments extrajudicially on the compatibility of the potential liability regimes with the Court's new line of case law and the criticisms levelled at the decision in Delfi AS. He argues that the Court may be seen to have adopted a middle ground between two diametrically opposing viewpoints on the regulation of the Internet, one advocating for an environment relatively free from regulation of online conduct, and the other campaigning for a regulated Internet where the same legal principles apply both online and offline.