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EGMR: Geldentschädigung bei Hasskommentaren – Kein Haftungsprivileg

Nach dem Europäischen Gerichtshof für Menschenrechte müssen kommerzielle Webseitenbetreiber für beleidigende Nutzerkommentare oder Forenbeiträge auf Schadensersatz bzw. Schmerzensgeld haften. Dabei kommt es nicht auf eine rechtswirksame Inkenntnissetzung an. Die Haftung betrifft den Webseitenbetreiber unmittelbar – auch für Inhalte Dritter, die er per se nicht vorab prüft. Die Webseitenbetreiber sind verpflichtet die Inhalte der Nutzer wirksam zu überwachen und schwer beleidigende Inhalte zu verhindern. Filter für Schimpfwörter reichen dem Europäischen Gerichtshof für Menschenrechte nicht.

 

Dr. Bunnenberg zum Urteil: „Das Urteil bedeutet eine Durchbrechung der bisherigen Haftungsprivilegierung, die der Bundesgerichtshof durch die Rechtsprechung zur Forenhaftung begründet hat. Sie stärkt den Schutz der Persönlichkeitsrechte in besonders krassen Fällen. Das Urteil stellt allerdings keine neue generelle Regelungen auf, sondern weist auf eine Durchbrechung bei „Hasskommentaren“ hin. Da jeder Webseitenbetreiber, eine Kommentarfunktion anbietet aber nicht von vornherein den Missbrauch durch die Nutzer ausschließen kann, ist trotzdem besondere Vorsicht geboten. Kommt es zu einem Missbrauch der Kommentarfunktion und werden dort „Hasstrolle“ aktiv, müssen pro aktiv und ohne Aufforderung durch die Betroffenen, die Kommentare gelöscht werden.“

 

Zum Hintergrund:

 

Worum ging es?

 

Der Europäische Gerichtshof für Menschenrechte hat den Hintergrund des Falles wie folgt zusammengefasst:

 

11.  The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania.

12. At the material time, at the end of the body of the news articles there were the words “add your comment” and fields for comments, the commenter’s name and his or her e-mail address (optional). Below these fields there were buttons labelled “publish the comment” and “read comments”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “read comments” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms.

13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (an Estonian word for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, there was a system of automatic deletion of comments that included certain stems of obscene words. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately.

14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi’s Internet site there were “Rules of comment” which included the following:

“The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment …

Delfi prohibits comments whose content does not comply with good practice.

These are comments that:

–  contain threats;

–  contain insults;

–  incite hostility and violence;

–  incite illegal activities …

–  contain off-topic links, spam or advertisements;

–  are without substance and/or off-topic;

–  contain obscene expressions and vulgarities …

Delfi has the right to remove such comments and restrict their authors’ access to the writing of comments …”

The functioning of the notice-and-take-down system was also explained in the “Rules of comment”.”

Um welche Beleidigungen handelte es sich? Im Urteil werden die Beleidigungen wir folgt zusammengefasst:

 

„“1.  (1) there are currents in [V]äinameri

(2) open water is closer to the places you referred to, and the ice is thinner.

Proposal – let’s do as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag

  1. bloody shitheads…

they bathe in money anyway thanks to that monopoly and State subsidies and have now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!

  1. good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!
  2. [little L.] go and drown yourself
  3. aha… [I] hardly believe that that happened by accident… assholes fck
  4. rascal!!! [in Russian]
  5. What are you whining for, knock this bastard down once and for all [.] In future the other ones … will know what they risk, even they will only have one little life.
  6. … is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he.
  7. “a good man lives a long time, a shitty man a day or two”
  8. If there was an iceroad, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port … instead, fcking monkey, I will cross [the strait] anyway and if I drown, it’s your fault
  9.  and can’t anyone defy these shits?
  10. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.
  11. wonder whether [L.] won’t be knocked down in Saaremaa? screwing one’s own folk like that.
  12. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this.

Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the state is powerless towards them – it is really them who govern the state), because they only live for today. Tomorrow, the flood.

  1. this [V.] will one day get hit with a cake by me.

damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that … a pig is going to be slaughtered. no way

  1. bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!
  2. Estonian state, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas … and this cannot at all be compared to a ram’s Michaelmas. Actually sorry for [L.] – a human, after all… 😀 😀 😀
  3. … if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed … will he [then] dare to act like a pig for the third time? 🙂
  4. fucking bastard, that [L.]… could have gone home with my baby soon … anyway his company cannot guarantee a normal ferry service and the prices are such that … real creep … a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year
  5. you can’t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the state and [L.] do not care about the people’s opinion) … just for fun, with no greed for money – I pee into [L.’s] ear and then I also shit onto his head. :)””

 

Der Europäische Gerichtshof für Menschenrechte hat die Entscheidung wie folgt begründet:

 

„155.  The Court notes that the applicant company took certain measures in this regard. There was a disclaimer on the Delfi news portal stating that the writers of the comments – and not the applicant company – were accountable for them, and that the posting of comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities, was prohibited. Furthermore, the portal had an automatic system of deletion of comments based on stems of certain vulgar words and it had a notice-and-take-down system in place, whereby anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose, to bring it to the attention of the portal administrators. In addition, on some occasions the administrators removed inappropriate comments on their own initiative.

156. Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention (see paragraph 136 above). The Court notes that as a consequence of this failure of the filtering mechanism, such clearly unlawful comments remained online for six weeks (see paragraph 18 above).

 

 

162. Based on the concrete assessment of the above aspects, taking into account the reasoning of the Supreme Court in the present case, in particular the extreme nature of the comments in question, the fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction imposed on the applicant company, the Court finds that the domestic courts’ imposition of liability on the applicant company was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company’s right to freedom of expression.

Accordingly, there has been no violation of Article 10 of the Convention.”

 

Das Urteil des Europäischen Gerichtshofs vom 16. Juni 2015, Az. 64569/09 – DELFI AS v. ESTONIA können Sie hier abrufen.