August 22, 2021 rcplegal 0 Comments

According to art. 10 of the European Convention on Human Rights, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

However, the exercise of these freedoms also involves certain responsibilities, including protecting the reputation and morals of others. Freedom of expression cannot harm the dignity, honor, private life of the person or the right to one’s own image.
If the information published about a person is not true, or worse, if the sources are uncertain and of bad – faith and provoke real online debates that lead to defamation and tarnishing the image of a person, who has the legal responsibility to bear the interference and possible damages?

The right to respect for the privacy and image of a person is multiple regulated in national and international law, and the ICCJ, through a ruling on tortious civil liability, rules taking into account the European jurisprudence, that there must be a balance between the person’s right to image and the freedom of expression enshrined in accordance with the Romanian Constitution itself.

Freedom of expression cannot harm the dignity, honor, private life of the person or the right to one’s own image.

“The responsibility for publishing defamatory and biased statements rests primarily with the administrator of a site, being the person who makes it possible to bring the information to the public” (ICCJ civil decision 3216 of November 19, 2014).

There must be a minimum of verification of the factual reality of the information published on its website and the signaling of those valuable subjective opinions of those who post through free access on online pages, the responsibility of the administrator of a web-site.
These duties can be of great importance if they concern a person’s right to privacy or dignity. The fact of not censoring or preventing the publication of defamatory content can be identified even by encouraging such conduct by publishing the articles themselves and then maintaining them for periods of time long enough to create real harm to data subjects.
How violations of privacy can be prevented by defamatory content, clarifies the same decision of the ICCJ judging by the considerations contained in the case Delfi AS v. Estonia from October the 10th 2013, discussing a disclaimer to provide that the administration of the site is not agrees with, does not encourage and prohibit defamatory, insulting, obscene, or threatening comments. It is necessary to create an automatic comment control and deletion system, based on keywords, a system through which anyone can notify and request the removal of inappropriate comments

In addition, the site administrator may occasionally verify and remove inappropriate comments in order to protect the interests of data subjects against third parties, may prevent anonymous posts, but the functionality of these systems in case of damage will be assessed in consideration of tortious liability, analyzed depending on the degree of guilt of the administrator.

In order to establish the need to apply a sanction, the degree of seriousness of the defamatory comments, their repetitiveness in order to clarify the administrator’s position regarding the respective content must be taken into account, if for the cases in which the publications can remain under the anonymity of some users. revealing the identity of the person who, through his messages, harms the image or dignity of a person, the degree of reality of the published events, the reasons for keeping the articles or comments, when appropriate.

Excessive value judgments, which prove to have no factual basis, show an increased degree of guilt compared to possible events based on an experience of the person who chooses to post a particular article or comment, thus leading to the administrator’s intention to keep that content. The proof of the facts attributable to a person whose image can be touched, removes to some extent the guilt, especially if the subject is one of a certain notoriety and the basic information is public and does not refer to aspects of private life.

Therefore, we refer here to the expression of opinions on the factual events that can be imputed to a person and not to the appreciation of his human qualities, of his professional capacities, or of his morality. Referring to the preservation of a defamatory content on some related facts about a person, it will be especially important to analyze in establishing the guilt of the online page administrator, the effort he made towards the search for the truth, being appreciated any public mentions on this side. subject, coming even from the operator.

The fact of having a written and public dialogue with the author of the comment, showing not only concern for finding out the truth, but also respecting the balance between freedom of expression of the person who wrote the message and the right to image and dignity of the person subject to discussion, is the right way to proceed.

Regarding the photographs of people, the relevant jurisprudence holds that the pictures published in the scandalous press, which are usually intended to satisfy the public’s curiosity about the details of a person’s strictly private life, are often taken in a climate of continuous harassment, which can induce the person concerned a very strong feeling of intrusion into his personal life or even persecution.

The image of a person is one of the main attributes of his personality, because it expresses his originality and allows him to differentiate himself from his peers. A person’s right to an image implies control over that image, which includes his or her right to refuse to broadcast a photograph.

In this particular situation, the same rules of attracting the responsibility of the site administrator, daily, tabloid, or other way of public expression will be applied, because by means of photos, it makes possible an area of ​​interaction between the injured person and third parties.

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