European Court decides websites could be liable for users’ comments

17 Jun 2015

The European Court of Human Rights in Strasbourg has ruled that websites can be held liable for comments posted by readers.

The European Court of Human rights in Strasbourg has set a new legal precedent after ruling that Estonian news site may be held responsible for anonymous, defamatory comments from readers on its site. The simple upshot is websites in the EU can be declared liable for what people post in comments.

The implications could potentially be massive for Europe’s growing internet industry.

Civil rights groups like Access have decried the decision as a huge loss for freedom of speech in Europe and a threat to the viability of web publishing.

Access said that the ruling creates a worrying precedent that could force websites to censor content.

It also said that it creates a perverse incentive for websites to discourage online anonymity and freedom of expression.

“Despite warnings from groups defending vulnerable internet users, as well as from large media companies, the Court has dramatically shifted the internet away from the free expression and privacy protections that created the internet as we know it,” said Peter Micek, senior policy counsel at Access.

A blow to users’ rights online is a popular Estonian news website that allows anonymous comments.

In 2006, users’ anonymous comments on an article about icy roads and transportation ferries led to the site being sued for defaming a ferry company’s owner.

Estonian courts allowed the alleged victim of defamation to sue Delfi as the publisher of the comments, and the decision was affirmed by the lower chamber of the European Court of Human Rights.

Access warned that the decision by the European Court of Human Rights is a departure from the European Union’s E-Commerce Directive, which guarantees liability protection for intermediaries that implement notice-and-takedown mechanisms on third-party comments.

“This ruling is a serious blow to users’ rights online,” Micek continued. “Dissenting voices will have fewer outlets in which to seek and impart opinions anonymously. Instead, users at risk will be dragged down by a precedent that will keep them from accessing the open ocean of ideas and information.”

Commercial advantage?

The key to the decision relates to what is “hate speech versus free speech”, and the court decided that reputation protection and free speech deserve equal respect.

Unlike the US, which has Section 230 that allows comments as free speech, Europe has no such provision.

Even though Delfi’s article was considered balanced and fair, the fact that the site decided it wanted comments because this would create commercial advantage makes it liable.

The court ruled:

As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments).”

European Court of Human Rights in Strasbourg, image via Shutterstock

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years