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European Court Pronounces on Liability for User-generated Comments

European Court Pronounces on Liability for User-generated Comments

17th November 2015

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A recent decision by the Grand Chamber of the European Court of Human Rights (ECHR) may provide some insight into the contentious issue of user-generated comment. The decision by the ECHR in the case of Delfi AS v Estonia was delivered on 16 June 2015 and specifically addressed the issue of whether a commercial online news portal could be held liable for comments posted by third parties and, if so, whether this would breach its freedom to impart information.

The applicant was Delfi AS, one of the largest news portals in Estonia. The applicant had been held liable by Estonian courts for offensive and discriminatory comments posted by its readers on an article discussing how a company that provided public ferry transportation (company) destroyed public roads over the frozen sea. Although the article was itself lawful, it attracted threatening and offensive comments against a Jewish member of the company.

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Delfi had a policy to limit unlawful content, and operated a filter as well as a notice and take-down system. The comments remained on the website for approximately six weeks before Delfi was notified about them by lawyers acting for the company that had been defamed. The comments were immediately removed by Delfi at this stage.

The matter initially went to the Supreme Court in Estonia which found that Delfi should have prevented the unlawful comments from being published, because it had a legal obligation to avoid causing damage to other persons.

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Delfi subsequently brought the matter to the ECHR, where the court was asked to determine whether the Supreme Court's decision to hold Delfi liable was an unjustified and disproportionate restriction on Delfi’s freedom of expression, which was protected under Article 10 of the Convention for the Protection of Human Rights. In a unanimous decision, the ECHR refused to overturn the decision of the Supreme Court.

The matter was then brought before the Grand Chamber, which is the appeal court within the ECHR structure. The Grand Chamber held that some of the offensive comments had amounted to hate speech and therefore did not enjoy the protection of freedom of expression in terms of Article 10. The question was rather whether the national courts’ decision, holding Delfi liable for comments posted by third parties, was in breach of its freedom to impart information as guaranteed by Article 10.

The Grand Chamber agreed with the Chamber’s assessment of the matter and highlighted the following three aspects of the case:

Firstly, the Grand Chamber highlighted the fact that the actual authors of the comments could not amend or delete their comments. The removal of the comments was controlled solely by Delfi as it possessed the technical means to do this. Furthermore, Delfi had an economic interest in the posting of the comments as it was run on a commercial basis and attracted thousands of comments on its articles. The Grand Chamber therefore concurred with the Chamber that, although Delfi had not been the author of the comments, it had direct control over the publication of the comments and had gone beyond that of a passive, purely technical service provider.

Secondly, the authors of the offensive comments could not be held personally liable, because Delfi had allowed readers to make comments on the news articles without first registering their names. There appeared to be no measures available to ascertain the identity of these authors.

Thirdly, the Grand Chamber held that Delfi failed to take sufficient steps to prevent or remove the defamatory comments. Although Delfi had certain mechanisms for filtering hate speech or speech inciting violence, both the automatic word-based filter and the notice and take-down system had failed to filter out the expressions of hatred and threats to the owner of the ferry company. Delfi also failed to remove the offending comments in good time as the comments had remained online for six weeks. The Grand Chamber found that it was not disproportionate for Delfi to remove unlawful comments without delay, even without notice received from alleged victims or third parties whose ability to monitor the internet was more restricted than that of a large commercial internet news portal.

One of the essential distinguishing characteristics drawn by the Grand Chamber was that the case did not relate to “other fora on the internet” where third-party comments can be disseminated, for example an internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being controlled by any input from the forum’s manager. The Grand Chamber’s decision was further qualified on the basis that it will not apply to a social media platform where the platform provider does not itself offer any content and where the content provider is a private person running the website or a blog as a hobby. The court clearly emphasised that liability would arise in cases of professionally managed internet news portals running on a commercial basis.

The decision in this matter raises questions about the extent to which news websites that permit their readers to comment on their articles may be held liable for user-generated comments. Our courts have not yet grappled with this issue, but when this issue is eventually dealt with in court the Delfi case will undoubtedly feature in the court's assessment of the issue.

In our view the Grand Chamber went too far in endorsing the view that Delfi ought to have monitored the comments posted on its website more closely. The court failed to appreciate that undertaking such an exercise will be a mammoth task for popular news sites that have thousands of readers. The financial cost associated with such a monitoring exercise will create a chilling effect on less well-resourced commercial publications. Nevertheless, the judgment offers three important pointers which news websites should take into account in order to limit their liability for user-generated content:

  1. Users should be required to register and provide their real identities and contact details (even if they use a pseudonym on the site) before posting comments. This will ensure that in the event of legal action being taken, the website can direct the complainant to the user. This should be coupled with a clear comment policy which prohibits unlawful speech and informs readers that in the event of a complaint their details will be handed over to the complainant;
  2. A system of take-down notices should be implemented and this should be closely monitored to ensure that as soon as a complaint is made, it is assessed and acted upon; and
  3.  At a minimum, every news website should implement an automatic filter which assists with the identification of hate speech and inappropriate material.

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