CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 mars 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .s543FF837 { width:151.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 38940/13 Andrzej BUDA against Poland   The European Court of Human Rights (First Section), sitting on 26   March   2024 as a Committee composed of:   Lətif Hüseynov , President ,   Krzysztof Wojtyczek,   Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   38940/13) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 May 2013 by a Polish national, Mr Andrzej Buda (“the applicant”), who was born in 1974, lives in Głogów and, having been granted legal aid, was represented by Ms   Słupska-Uczkiewicz, a lawyer practising in Wrocław; the decision to give notice of the complaint concerning the applicant’s right to respect for his private life to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns a complaint under Article 8 § 1 of the Convention about the refusal to hold the administrator of an Internet social media platform liable for offensive comments directed by the portal’s users towards the applicant. The issue in the case is whether the liability of the actual author of the offensive comments could have constituted an alternative to that of the portal. 2.     The applicant, a PhD student at the University of Wrocław, was a user of nasza-klasa.pl (“our-class.pl”, a social media platform operating between 2006 and 2021, enabling users to connect with friends from school), and a member of the University of Wrocław forum on nasza-klasa.pl since 2008. 3.     In March 2009 the applicant participated in a discussion on the forum concerning an annual feminist demonstration against violence targeting women. The applicant’s views, although not expressed in a vulgar language, were found to be controversial and provocative by some of the other users. 4.     On 3 March 2009 another user (T.B.), commenting on the applicant’s post, made vulgar and derogatory statements, insinuating that the applicant had mental health issues, and urging him to leave the forum. When asked by the applicant to remove the comments under threat of legal action, T.B. did not comply and resorted, again, to vulgar and derogatory language. 5 .     Some of the other users also published comments hostile to the applicant. One of them (A.J.), reposted and joined T.B.’s call for the applicant to leave the forum. Another (T.S.) used vulgar language alluding to the applicant’s sexual life. 6.     The applicant reported the offensive comments, sending the portal administrator several messages with screenshots. 7.     On 9 March 2009 A.J. deleted his comment. Some of the other offensive comments were not removed until January 2010, when the Głogów District Prosecutor requested their removal within proceedings the nature of which remains unclear. 8.     Still in March 2009, the applicant brought two civil actions for infringement of his personal rights under Articles 24 and 448 of the Civil Code: one against T.B. and the other against the owner and administrator of the portal (a limited liability company Nasza Klasa Sp. z o.o.). The proceedings in both cases ended in 2012. 9.     The Wrocław Court of Appeal granted the claim against T.B. and ordered the latter to publish an apology on the relevant forum, which he did, while dismissing the applicant’s pecuniary claim. 10.     The lawsuit against the administrator of the portal was dismissed in its entirety and the Supreme Court refused to entertain the applicant’s cassation appeal. The domestic courts found that the impugned comments had to be assessed with reference to the concrete circumstances in which they had been made, that is in a heated discussion in which the applicant expressed controversial views. Against that background, it was found that the use of vulgarities by other users was not aimed at denigrating the applicant in the eyes of those participating in the discussion on the forum but at expressing in this simple, but undoubtedly inappropriate manner, their disapproval of the applicant’s views. 11.     The applicant alleged a violation of Article 10 of the Convention. He complained that he was not protected against vulgar comments published on the relevant portal. THE COURT’S ASSESSMENT 12.     The Court, being the master of the characterisation to be given in law to the facts of the case, notes that the applicant’s complaint relates to his dignity and reputation and therefore considers that it falls to be examined under Article 8 § 1 of the Convention (see Radomilja and Others v.   Croatia [GC], nos.   37685/10 and 22768/12, § 126, 20 March 2018). 13.     The Government objected to the application on various grounds. The Court does not need to rule separately on all of the Government’s objections, as the present application is in any event inadmissible for the reasons set out below. 14.     The general principles concerning the Contracting State’s positive obligation to ensure effective protection of private life against offensive comments published by third parties on Internet portals were summarised in Delfi AS v.   Estonia [GC], no. 64569/09, §§ 139-143, ECHR 2015, and Tamiz v.   the United Kingdom (dec.), no. 3877/14, §§ 77-79, 19 September   2017. 15.     The choice of measures designed to secure compliance with that positive obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States’ margin of appreciation (see Mosley v. the United Kingdom , no. 48009/08, §   107, 10   May 2011). 16.     Among the aspects relevant for the assessment of an interference with the right to private life, as weighed against the freedom of expression, the Court has identified, inter alia , the liability of the actual authors of the comments as an alternative to the intermediary’s liability ( see Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary , no.   22947/13, §   69, 2 February 2016, and Tamiz , cited above, §   82). 17.     In the present case, the applicant stated, within the discussion on the forum, that he had no problems in obtaining the personal data of the authors of the offensive comments. He then initiated proceedings against one of them (T.B.) and was successful in holding him accountable. 18.     Considering the wide margin of appreciation afforded to States in balancing the competing private interests of the applicant, under Article 8 of the Convention, and those of the portal administrator, under Article 10 (see Delfi AS , cited above, § 139 and the case-law cited therein), the Court is satisfied that the domestic authorities have provided the applicant with a sufficient legal remedy as regards the comments made by T.B. 19.     In so far as the applicant complains about the dismissal of his claim against the portal administrator in respect of the comments made by the other users (see paragraph 5 above), the Court recalls that regard must be had to the specificities of the style of communication on certain Internet portals (see Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt , cited above, §   77) and, more broadly, the reality of Internet communication where millions of Internet users post comments online every day and many of these users express themselves in ways that might be regarded as offensive or even defamatory. However, the majority of comments are likely to be too trivial in character, and/or the extent of their publication is likely to be too limited, for them to cause any significant damage to another person’s reputation (see Tamiz , cited above, §   80). 20.     Moreover, the Court takes note of the fact that the applicant, even in the case against the portal administrator, relied predominantly on the comments made by T.B., with those of the other users mentioned merely in passing. In this context, the Court finds it important that the applicant, despite having the possibility to lodge claims against other users, refrained from taking this legal avenue. Thus, the importance that the applicant gave to the comments of T.B., compared to those of other users, in the proceedings against the portal administrator supports the conclusion that the applicant did not consider the other comments to be more than trivial vulgarities. 21.     In view of the above arguments, the Court is satisfied that the applicant’s grievance as regards the protection of his reputation was sufficiently remedied within the proceedings against T.B. 22.     Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 April 2024.     Liv Tigerstedt   Lətif Hüseynov   Deputy Registrar   President