Sentenza importante della CEDU essenzialmente sull’art. 10 della Covenzione che recita così: <<“1. 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”>>
L’editore non può dire che si tratta di fonte giornalistica, protetta da confidentiality, dato che i post dei lettori erano destinati non ai giornalisti ma al pubblico, § 71.
Purtuttavia l’anonimato è giustificato ugualmente perchè , dopo bilanciamento, è necessario per manterere un ambiente democratico vibrante e proteggere gli autori da possibili ritorsioni: <<the Court has no doubt that an obligation to disclose the data of authors of online comments could deter them from contributing to debate and therefore lead to a chilling effect among users posting in forums in general. This affects, indirectly, also the applicant company’s right as a media company to freedom of press. It invites users to comment on its articles in order to further discussion on its journalistic work (see paragraphs 5 and 65 above). To achieve this goal, it allows authors of comments to use usernames (see paragraph 7 above); upon registration, users are informed that their data will not be seen publicly and will only be disclosed if required by law (see paragraphs 6 and 7 above). The forums’ rules dictate that certain content is not accepted, and that comments are screened by a keyword system, may be subject to a manual review and will be deleted if they are not in line with the rules (see paragraphs 7-12 above).>>, § 74
E poi , circa il bilanciamento intorno alla necessità in una società democratica di cui al cit. art. 10, omesso dalle corti di impugnazione che avevano immotivatametne ritenute prevalente il diritto degli “offesi” a conoscere il nome dell’offensore: <<95. (…) However, even a prima facie examination requires some reasoning and balancing. In the instant case, the lack of any balancing between the opposing interests (see paragraph 94 above) overlooks the function of anonymity as a means of avoiding reprisals or unwanted attention and thus the role of anonymity in promoting the free flow of opinions, ideas and information, in particular if political speech is concerned which is not hate speech or otherwise clearly unlawful. In view of the fact that no visible weight was given to these aspects, the Court cannot agree with the Government’s submission that the Supreme Court struck a fair balance between opposing interests in respect of the question of fundamental rights (see paragraph 60 above).
96.The Court finds that in the absence of any balancing of those interests the decisions of the appeal courts and of the Supreme Court were not supported by relevant and sufficient reasons to justify the interference [la comunicaizone dei nomi]. It follows that the interference was not in fact “necessary in a democratic society”, within the meaning of Article 10 § 2 of the Convention.
97. There has accordingly been a violation of Article 10 of the Convention>>.