ARTICLE 19 welcomes the European Court of Human Rights’ decision in a case concerning an individual’s liability for third-party comments on a social media post. In Pătraşcu v. Romania, the European Court of Human Rights (the Court) found that holding the applicant liable for comments made by others on his Facebook page constituted a violation of his right to freedom of expression. It emphasised that such liability could lead to excessive self-censorship, undermining the very essence of freedom of expression.
At the same time, ARTICLE 19 expresses disappointment that the Court did not reconcile its analysis in this decision with previous case law on social media users’ liability for third-party comments. While the decision is certainly a positive step, it leaves important questions unanswered and fails to provide clear guidance for standard-setting and practice.
On 7 January, the Court’s decision in Pătraşcu v. Romania concerned the case of Alexandru Pătrașcu, an avid opera enthusiast who has published extensively about opera, earning the ‘Best Cultural Blog’ award in 2016. He also covered a scandal at the Bucharest National Opera involving protests against foreign staff and managerial changes, which generated significant public discourse on his blog and on Facebook. The High Court of Romania held him liable for these comments, ordering him to delete them and pay damages to two National Opera employees. This decision was significantly influenced by the Court’s earlier ruling in Delfi AS v Estonia, which offered guidance on the balance between freedom of expression and the responsibilities of social media intermediaries.
ARTICLE 19 and Digital Security Lab Ukraine submitted a joint third-party intervention in this case to the Court in 2022.
The Court found that the Romanian authorities violated Pătraşcu’s right to freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights.
Barbora Bukovská, Senior Director for Law and Policy at ARTICLE 19, said:
‘ARTICLE 19 welcomes the European Court of Human Rights’ decision in this case. Holding users liable for comments of others chills public discourse and opens the door for exploitation. Malicious actors could post inflammatory comments just to provoke legal trouble for others, creating a hostile environment that stifles genuine interaction. To cultivate lively and open online spaces, accountability for online content remains with courts and independent authorities. Shifting this responsibility onto everyday users who lack the resources and expertise to navigate complex legal standards sets a dangerous precendent.
‘At the same time, we are disappointed that the Court did not reconcile the analysis in this case with its previous decisions in similar cases concerning users’ liability for third-party comments. This decision, despite being positive, also presents challenges for future similar situations because it does not go far enough in protecting people from being held responsible for others’ actions on social media platforms.’
Background to the decision
In our joint submission, ARTICLE 19 and Digital Security Lab Ukraine argued that social media users should not bear the responsibility of deciding what content is deemed ‘legal’ or not. This can only be decided by a court or other independent authority.
We warned that it would be deeply problematic to require individuals who use social media to be held to the same obligations historically imposed on social media platforms and companies. Social media platforms – which also should not be held liable for third-party content – are already struggling with consistency when it comes to their content moderation practices. They also do not have the legitimacy or expertise to make decisions about the legality of speech, in particular when it comes to categories of speech where interpretation is highly context-dependent. Individual social media users are even less equipped to determine what content should be removed or not.
We also highlighted that individual user liability could be instrumentalised to target specific people or organisations. For example, individuals could comment under posts with the intention of making that specific person or individual liable. This could include civil society organisations, but also ordinary people who find themselves at the receiving end of another individual’s ill-intent.
Court decision on 7 January
In its decision:
- The Court found that holding Pătrașcu liable for comments made by third parties constituted an infringement of his right to freedom of expression. The Romanian courts failed to adequately balance the competing interests involved in the case, namely freedom of expression and the reputation and rights of Bucharest National Opera employees.
- The Court found that the legal basis for holding the applicant responsible was deemed insufficiently clear. The Court noted that the law did not define clearly enough the extent of his responsibility for comments made by others on his social media account.
- The Court criticised the Romanian authorities for not demonstrating that the measures taken against Pătrașcu were proportionate to the legitimate aim pursued, which was to protect the reputation of the Bucharest National Opera’s employees.
- The Court’s ruling emphasised that while Pătrașcu had some responsibility for moderating comments on his Facebook page, he should not be held liable for third-party expressions that were not directly authored by him. The Court highlighted that this could lead to excessive self-censorship among social media users.
Today’s decision somewhat counters the negative trajectory established by the Court’s previous jurisprudence. For instance, in Delfi v. Estonia, the Court held that Delfi, a major Estonian news portal, could be held liable for defamatory comments posted by users on its website. Similarly, in Sanchez v. France, the Court found that prosecuting a local councillor for failure to delete comments posted by third parties on his Facebook feed did not violate his right to freedom of expression, creating a potential chilling effect. In Pătrașcu’s case, on the other hand, the Court emphasised that users should not be held liable for third-party comments on their platforms without clear legal standards.
However, the Court did not explain the rationale behind these differing outcomes in its case law and did not clarify how the varying standards set in these cases should apply in various contexts. This lack of guidance may limit the potential impact of today’s decision on protecting freedom of expression in digital spaces moving forward.