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Internet: Case-Law of the European Court of Human Rights DIVISION DE LA RECHERCHE RESEARCH DIVISION _______________________ Internet: case-law of the European Court of Human Rights Updated: June 2015 Publishers or organisations wishing to reproduce all or part of this report (or a translation thereof) in print or on line are asked to contact [email protected] for further instructions. © Council of Europe/European Court of Human Rights, 2011, June 2015 (update) The document is available for downloading at www.echr.coe.int (Case-Law – Case-Law Analysis – Case-law research reports). The report was prepared by the Research Division and does not bind the Court; it may be subject to editorial revision. © Council of Europe / European Court of Human Rights, updated June 2015 ii TABLE OF CONTENTS INTRODUCTION .................................................................................................................... 4 I. JURISDICTION ISSUES ................................................................................................. 4 II. Data-protection and retention issues relevant for the Internet .................................... 7 (1) The scope of Article 8 and personal data ....................................................................................... 7 (2) Basic principles in respect of data storage as set out in the Court’s case-law .............................. 9 (3) Data retrieved following surveillance .......................................................................................... 10 (4) The taking and retention of fingerprint or cellular material and the storage of DNA profiles .... 11 (5) Storage of other personal data on public databases .................................................................... 12 (6) Data protection with specific reference to the Internet ................................................................ 14 III. Internet and freedom of expression ............................................................................... 17 (1) The Court’s general principles concerning freedom of expression apply to the Internet ............ 17 (2) Interpretation of the Convention “in the light of present-day conditions” must take into account the specific nature of the Internet as a “modern means of imparting information” .................... 22 (a) Principles .................................................................................................................................................... 22 (b) Limits .......................................................................................................................................................... 23 (3) Restrictions that might prove necessary in the Internet context (Article 10 § 2) ......................... 24 (4) The “duties and responsibilities” of an Internet news portal as regards online comments posted by users ........................................................................................................................................ 27 (5) Press publications on the Internet: reinforcement of journalists’ “duties and responsibilities” . 29 (6) Higher level of protection of freedom of expression in the area of political, militant and polemical expression on the Internet ........................................................................................... 32 (a) Principles .................................................................................................................................................... 32 (b) Extent of admissible political criticism ....................................................................................................... 32 (c) Limits to admissible criticism ..................................................................................................................... 32 (7) The chilling effect on freedom of expression ................................................................................ 33 IV. Internet and Intellectual Property ................................................................................. 35 (1) Presentation ................................................................................................................................. 35 (2) Intellectual property falls under Article 1 of Protocol No. 1 to the Convention .......................... 36 (a) Property rights ............................................................................................................................................. 36 (b) Moral rights................................................................................................................................................. 37 (3) Conclusion ................................................................................................................................... 40 V. Access to information and the Internet under Article 10 of the Convention ............ 40 (1) Applicability of Article 10 ............................................................................................................ 40 (2) State obligations ........................................................................................................................... 41 (3) Recent developments .................................................................................................................... 42 (4) Restrictions .................................................................................................................................. 43 (5) Access to Internet ......................................................................................................................... 44 (6) Conclusion .................................................................................................................................. 46 VI. Obligation of States to combat violence and other criminal or unlafwul activities .. 47 1) Internet: positive obligations of States and protection of individuals’ rights .............................. 47 (a) Protecting the integrity of vulnerable individuals, including children and minors....................................... 47 (b) Online publication of photos showing sexual practices ............................................................................... 48 (c) Internet and defamation, threats and insults ................................................................................................ 49 (d) Protection of immigrants and foreigners ..................................................................................................... 50 (e) Internet and the disclosure of financial and wealth data .............................................................................. 51 (f) Protection of Internet communications and States’ obligations ................................................................... 53 2) Positive obligations of States to prevent violence and other criminal or illegal activities, as developed in other contexts .......................................................................................................... 53 (a) Positive obligation to protect individuals against slavery and human trafficking under Article 4 ............... 53 (b) Positive obligation to protect individuals against physical harm and sexual abuse ..................................... 53 (c) Positive obligation to combat racism, hate speech, discrimination, intolerance and the glorification of violence and terrorism ................................................................................................................................. 54 APPENDIX - List of judgments and decisions .................................................................... 57 © Council of Europe / European Court of Human Rights, updated June 2015 iii INTERNET: CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS INTRODUCTION At the request of the Directorate General of Human Rights and the Rule of Law, the Research and Library Division of the Registry of the European Court of Human Rights has updated the report on “Internet: case-law of the European Court of Human Rights”, published in June 2011. This latest version, as updated in June 2015, covers the Court’s case-law on various related or interconnected subjects. Leading judgments are accordingly cited in various places. Therein lies the added value of this study: it offers a transversal approach based on clear, pertinent, ready-to-use information. The complex subject covered here relates to your many centres of interest on various levels. The report provides reliable, up-to-date access, a thread to guide the reader safely through the Court’s judgments and pending cases concerning the Internet, a constantly developing area of the law. I. JURISDICTION ISSUES The Research Division has been asked to explore the Court’s jurisprudence on jurisdictional issues in Internet-related cases. It should be noted at the outset that the term “jurisdiction” primarily means the power of a court to hear and decide a case or make a certain order. However, this term is also used to refer to the territorial limits within which the jurisdiction of a court may be exercised. In this regard, it is useful to bear in mind that jurisdiction is an aspect of a State’s sovereignty and for this reason it is generally confined to the territory of that State (Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 131, ECHR 2011). However, transactions or publications on the Internet may span many borders. In other words, there is more often than not a cross-border element in Internet-related cases. That raises the question,
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