Publishing online readers’ comments – can you really be held liable?

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The Grand Chamber of the European Court of Human Rights (ECtHR) in Delfi AS v Estonia has held that a commercially –run Internet news portal was liable for the offensive online comments of its readers.

Facts

Delfi AS, a registered company in Estonia runs one of the largest Internet news sites in the country. In 2006, Delfi published an article about a ferry company regarding the company’s decision to change the route its ferries took to certain islands. This resulted in the ice breaking where ice roads could have been built making the crossing cheaper and shorter. The news story prompted a lot of comments from readers below the article, with many readers writing highly offensive and threatening comments about the ferry company and its owners.

Lawyers representing the ferry company requested Delfi to remove the comments 6 weeks after their publication. Additionally, the ferry company took legal proceedings against Defli securing a judgment in the Estonian courts for defamatory comments, where Delfi was fined €320. Delfi appealed to Estonia’s Supreme Court by arguing that under the EU Electronic Commerce Directive, Delfi’s role as an information society service provider or storage host was purely technical, passive and neutral. However, the Estonian Supreme Court rejected this argument and found that the portal exercised control over the publication of comments. It accepted that there was a difference between a portal operator and a traditional publisher of printed media, with the former not being able to edit comments as the latter would be required too. However, both had a commercial interest in the publication of comments and so should be considered as publishers. Therefore, the national court found that the portal had failed to prevent publication of comments that were threatening and degraded human dignity, as well as to remove such comments on its own initiative.

Delfi then brought proceedings before the ECtHR arguing that the decision of the national Estonian courts by making Delfi liable for readers’ comments breached Estonia’s obligation to respect and protect freedom of expression. In its Chamber judgment, the ECtHR held that there was no violation of freedom of expression and the actions taken by the Estonian courts were justified. This was due to the nature of the comments, which were highly offensive with some containing hate speech, the portal had not prevented them from going public, it had benefited from their existence and the fine imposed was not excessive. Delfi requested for the case to be referred to the Grand Chamber of the ECtHR, which accepted the request.

Judgment

The Grand Chamber noted the vast benefits the Internet brings including to freedom of expression enabling dissemination of information instantly and worldwide. At the same time the Court acknowledged that there is a conflicting reality because a platform may be misused to disseminate hate speech and incite hatred violating personality rights such as the right to privacy.

The Grand Chamber agreeing with the view of the Chamber said that the assessment to be conducted in this case should focus on: the context of the comments; the liability of the authors of the comments instead of Delfi; steps taken by Delfi to prevent the comments; and the consequences of the actions by the national courts. With regard to context, the Court noted that the portal was run on a commercial basis seeking to attract large readership and as found by the national courts, Delfi had an economic interest in comments being posted by readers. Even though Delfi did not write the comments, it did not mean that it was passive as it did have control over what was published. As readers could comment anonymously, which Delfi permitted, it was uncertain as to how those persons commenting could be identified.

Delfi had put in place mechanisms to filter comments being made that contained certain offensive words, a notice-take down system, where users could report offensive comments and a disclaimer explaining to persons commenting that they were liable for content of comments and that certain types of comments would not be permitted. However, the Court found that these were not enough as they had failed and that it would not be disproportionate for Delfi, a large commercial Internet news portal to remove offensive comments. Finally, the fine imposed was not found to be excessive for Delfi and this did not impact on comments posted by its readers.

Therefore, the Court has held that:

member States may hold a news portal, such as Delfi, liable for clearly unlawful comments such as insults, threats and hate speech by readers of its articles if the portal knew, or ought to have known, that such comments would be or had been published on the portal. Furthermore, member States may hold a news portal liable in such situations if it fails to act promptly when made aware of such comments published on the portal”.

Impact

As the first case where the ECtHR has examined liability for user-generated comments on an Internet news portal and found such an enterprise liable it is an important case. The impact of this judgment could be wide not only in its applicability to 47 jurisdictions, which are members of the Council of Europe but also to businesses who may face similar issues and could be found to be liable. In particular, the Court has confined this judgment to only those portals where there is some control over publication of comments by users and where it is being operated for a commercial interest. In this regard, the Court points out that a discussion forum or a bulletin board, which do not generate content other than users comments, or a private individual generating content as a hobby would not be held to the same standard.

However, as a decision it is not without criticism. A number of non-governmental organisations and association intervened as third parties in this case pointing out that liability would have an adverse impact on freedom of expression. Similarly, a joint dissenting opinion points out that:

“In this judgment the Court has approved a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content). We find the potential consequences of this standard troubling. The consequences are easy to foresee. For the sake of preventing defamation of all kinds, and perhaps all “illegal” activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst”.

Forbes Solicitors has experience in advising on a range of issues in relation to providing goods and services online including drafting disclaimer notices. If you would like advice on the impact of this decision or any other related matter, please contact Daniel Milnes.

Nat Avdiu

About Nat Avdiu

Nat Avdiu is a Paralegal in the Contracts and Projects team at Forbes Solicitors. Nat provides updates for clients on a range of issues including: governance, data protection and freedom of information, procurement and charity law.
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