Fundamentals of IT Law: ISP liability for online crimes

ISP Involvement in Online Crimes

European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017

1 SI CNICA UN E DELL RC UNIVERSITÀ POLITECNICA DELLE MARCHE - Facoltà di Economia "Giorgio Fuà" Fundamentals of IT LAW Prof. Roberto Ruoppo www.univpm.itARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Role of the ECtHR

2 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 What is the role of ECtHR?

• It is the Council of Europe's jurisdictional body
• It can be sued only after the exhaustion of domestic remedies
• It is entitled to decide about the European Convention of Human Rights (ECHR)'s provisions violations by State authorities
• It can be referred to by individuals, so directly by citizensARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Theoretical Importance of the Convention

3 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 What is the role of ECtHR? From a theoretical point of view the role of this convention is crucial:

• It is the proof that fundamental rights' protection is one of the most important values and aims to be pursued in Information Technology society
• It also means that there are many tools for the right- holder in order to protect his/her rightsERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

About the Facts: Applicant and Request

4 About the facts: · Who was the applicant/claimant? · What was the request of the applicant before domestic jurisdiction? · What was the blog's fault and liability for the applicant?ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Applicant's Request and Blog's Fault

5 About the facts: · What was the request of the applicant before domestic jurisdiction? He claimed compensation for damages since the offence uploaded on the blog represented defamation · What was the blog's fault for the applicant? The blog's owner was allegedly accused for not having immediately removed the comment after its publication (the comment remained on the blog for nine days); its liability was also linked to the uncertainty about the material author's identity (hence the importance of ISP liability in order to answer to the claimant's requests)ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Defamatory Character of the Comment

6 About the facts: . Was the comment considered defamatory by domestic judges? · When dealing with border-line statements, which are the requirements useful to understand and assess their defamatory character?ERSITA PO UNIVERS ECNICA 04. DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Domestic Judges' View on Defamation

7 About the facts: · Was the comment considered defamatory by domestic judges? Yes, in light of the content and context in which the comment had been made (relevant elements in order to understand border-line situations)ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Rejection by National Authorities

8 About the facts: . Why the claim was unanimously rejected by national authorities?ERSITA PO UNIVERS ECNICA 04. DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Reasons for Claim Rejection

9 About the facts: . Why the claim was unanimously rejected by national authorities? There was no legal rule imposing an immediate removing of illegal comments (no analogy in criminal law is allowed); neither a duty to previously control information uploadedARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Applicant's Claim and Provisions Violated

10 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 About the facts: . What was the claim of the applicant about? · Which provisions were considered to have been violated by the claimant?ARSITA PO UNIVERS ECNICA 000 DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Details of the Applicant's Claim

11 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 About the facts: · What was the claim of the applicant about? The claimant argued that the lack of a national legal rule providing for the blog's liability represented an ECHR violation; and the absence of any condemn by jurisdictional authorities as well was considered to be an ECHR violation · Which provisions were considered to have been violated by the claimant? Art. 8 ECHR: right to respect for private life, having a broad meaning, including reputationARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Dispute Timeline

12 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 About the facts: . What was the time-line of the dispute? When the post of the claimant was published and how promptly the blog's owner answered?ARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Chronology of Events

13 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 . On 8th October the applicant posted a comment in order to reply to the offence and asking for the removal of the previous post . On 9 October the blog's owner removed the comment, explaining that it was wrong and based on inaccurate information and apologised for the mistake (para. 6)R SITA PO UNIVERS ECNICA 900 DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Action Before the European Court

14 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 After having exhausted the internal remedies, the claimant brought an action before the European Court of Human Rights, demanding to condemn Sweden because of the alleged violation of Art. 8 ECHR on the ground of the lack of an adequate protection of its right to respect of his private life This violation was due to the lack of any condemn against the blog's owner, leaving the claimant without any safeguardARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

European Court's Position on Comment Nature

15 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 What was the position of the European Court concerning the nature of the comment? Was it considered to be defamatory?ARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

ECtHR's View on Defamatory Content

16 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 · What was the position of the European Court concerning the nature of the comment? Was it considered to be defamatory? Even if the comment was considered not amounting to hate speech or incitement to violence, it upheld the defamatory nature already outlined by national judges (highlighting the content and the context of the statement, para. 25)17 ARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

ECtHR on Article 8 ECHR Obligations

European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 The ECtHR acknowledges that Art. 8 ECHR provides for both negative and positive obligations for States' authorities: Negative: imposing a duty to abstain from interference against private life (with some exceptions) Positive: adoption of measures in order to secure respect for private life However, the principles concerning States' authorities behaviours are the same: they must ensure a fair balance between interests involved exercising their margin of appreciation: which were in this case the interests at stake?ARSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Interests at Stake in the Case

18 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 Which were in this case the interests at stake? (freedom of expression was involved and needed to be safeguarded) Freedom of expression of blog's users vs. right to protection of private life for who is addressed by the statementERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

States' Margin of Appreciation

19 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 The ECtHR has acknowledged a wide margin of appreciation to States' authorities in balancing interests involved in the case at stake, unless their solution is reasonable It means that there must be strong reasons in order to allow European judges to substitute their view for that of domestic courtsERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Freedom of Expression in Online Relationships

20 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 There were some specific aspects for the evaluation of freedom of expression when dealing with online relationships?ERSITA PO UNIVERS ECNICA 1000 DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Specific Aspects of Online Freedom of Expression

21 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 . There were some specific aspects for the evaluation of freedom of expression when dealing with online relationships? Context of the comment; measures applied by the company in order to remove defamatory comments; the liability of the actual author of the commentERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Rejection of Application and Rights Involved

22 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 The European Court rejected the application, arguing that there was not a violation by State authorities of Art. 8 ECHR, since their margin of appreciation had not been overcome Which were the rights involved in the case at issue and that were to be thus balanced:

• Freedom of expression (provided by Art. 10 ECHR, a relative right that can be limited)
• Right for respect for private life (including reputation)
• States' autonomy in regulating those situations (unless the limit of not unreasonableness has been violated)ERSITA PO UNIVERS ECNICA DELLE MARCHE UNIVERSITÀ POLITECNICA DELLE MARCHE ISP involvement in crimes committed online

Assessment of State Authorities' Behavior

23 European Court of Human Rights (ECtHR), Pihl v. Sweden, 9 March 2017 Which were the aspects considered by the European Court in order to assess the legitimacy of the States' authorities behavior? Did the Swedish authorities make a fair balance between the fundamental rights involved in the dispute?