Case Watch: A Strasbourg Setback for Freedom of Expression in Europe

Next time you are about to leave a comment on your favorite news website, you should think about the implications of the recent ruling of the European Court of Human Rights in Delfi v. Estonia. The court ruled, essentially, that a news portal is under a relatively strict duty to prevent its readers from posting potentially defamatory comments in response to its articles. The judgment has quickly attracted caustic criticism—mostly online—over its apparent lack of appreciation of various aspects of Internet communication and the implications of its holding.

Judgment was eagerly anticipated in this first ECHR case involving a website’s liability for user (i.e. third party) generated content. It invited the court to help clarify a legal question, known as “intermediary liability”, that is central to the free circulation of information and ideas on the Internet. It is about whether those who facilitate online communication—from your local service provider, to a small blog, to YouTube and Facebook—should be held liable for the legality of information posted online by their users. A more familiar analogy would be, should your telephone service provider be liable for malicious gossip spread through its phone lines? The United States, the European Union and other democratic jurisdictions have opted, with good reason, to legally exempt intermediaries from traditional publisher liabilities in relation to third-party content. A unanimous 7-judge chamber of the Strasbourg court went the other way in Delfi.

The facts

The case involved Estonia’s leading online news portal, which publishes more than 300 news articles a day, attracting some 10,000 reader comments. The comments are often posted under pseudonyms and are not edited by Delfi. Users can report any comments left on the site as defamatory or otherwise abusive, which usually results in their prompt removal. In addition, a filter used by the site automatically deletes comments that include vulgar words. The site has a disclaimer that user comments do not reflect the opinions of the portal and that commentators are responsible for their posts.

Those safeguards were not sufficient, however, for Delfi to prevail in this case. The particular dispute involved reader comments triggered by an article which included personal threats and offensive language directed at the majority shareholder of an Estonian ferry company. When a month later his lawyers requested the take down of the offensive comments—through regular mail rather than the reporting button on the site—Delfi removed them on the same day. However, the Supreme Court of Estonia still found Delfi responsible for the comments, holding that it should be subject to the same liabilities as a traditional publisher.

The court found the article itself balanced and not defamatory but considered that the news portal should have exercised greater diligence with respect to reader comments.  In a particularly disturbing passage, the courts said that Delfi should have realized that “there was a higher-than-average risk that the negative comments could go beyond acceptable criticism.” In other words, the greater the public interest in (or outrage from) a news piece, the higher the potential liabilities for the news publication.

The court also noted that Delfi had “a certain reputation” for tolerating strongly worded reader comments and hinted that the policy might be driven by competitive considerations. As a result, the precautions undertaken by the site to prevent unfair harm to those affected by the comments were considered insufficient.  Since the site was in a better position to “predict the nature of the possible comments,” it was primarily incumbent upon it to take preventive measures, rather than relying on victim complaints. Interestingly, there was no discussion in the judgment of whether the operator of a ferry, a public service affecting large numbers of people, should have a thicker skin when dealing with (perhaps legitimate?) public frustration with its operations. It is not clear how that fits with the court’s seminal Lingens ruling, which held that public figures should are entitled to a lower level of legal protection from potentially invasive public comment than private citizens .

A very heavy burden

The clear implication of the ruling is that news portals should adopt active filtering or monitoring systems that can actually prevent from posting in the first place, or at least remove very quickly, any defamatory or otherwise unlawful user comments. Such systems would be very invasive, highly censorial and hugely cumbersome. A similar ruling by a Thai court forced Thailand’s leading news portal, Prachatai, to disable all user comments for a certain period (Prachatai also attracts around 10,000 comments daily, but with a more of a shoestring operation than Delfi’s). The Strasbourg ruling thus sets an awful precedent for the rest of the world, where, in the possible absence of strong independent media, portals such as Prachatai play a very important role in giving voice to public opinion.

But the Strasbourg ruling is also out of touch with European trends. A British court recently ruled, in a very similar case, that a serious news organization should not be held liable for user comments that amounted merely to “pub talk.”

Out of touch with EU law

The ruling is also on a clear course of collision with EU law, which is binding on the 26 EU member states. A EU piece of legislation, known as the Electronic Commerce Directive (ECD) 2000, exempts internet hosts, such as Delfi, from liability for third-party publications as long as they act quickly to remove such content upon obtaining “actual knowledge” of their (potentially) unlawful nature.

Whether a victim complaint is sufficient to provide actual knowledge differs somewhat from country to country, but having removed the defamatory comments upon receiving the ferry company’s claim, Delfi should have been safe under EU law (despite the Estonian supreme court’s surprising conclusion to the contrary). There is also no general duty for host sites—which do not substantially edit or otherwise interfere with third party content—to actively monitor the legality of such communications.

The chamber of the Strasbourg court was correct in noting that it was for the domestic courts, strictly speaking, to interpret the EU directive and the Estonian legislation implementing the directive. It is nevertheless striking that the chamber largely ignored the spirit and rationale behind the ECD’s intermediary liability exemption, also known as the safe harbor provisions: to encourage sites such as Delfi to reasonably police user content but without the stick of liability that would push them toward excessive censorship and burdensome filtering mechanisms. The same approach prevailed in the US with the 1996 adoption of the Communications Decency Act.

The two faces of anonymity

The Strasbourg chamber made a point of noting that Delfi allowed fully anonymous (or pseudonymous) comments, suggesting that this exposed the portal to greater liability. While this is not unreasonable in itself, the court seemed to have little appreciation for the importance of granting web users the protections of anonymity.

Surely, some will choose anonymity as a shield for spewing invective. However, one need not live in North Korea to understand the value of anonymity, which allows people to contribute information and ideas to the online agora without necessarily broadcasting their views on any given matter to the entire world—including, say, their employers or government connections. There is a fundamental element of privacy at stake here, which is protected by Article 8 of the European Convention—and which the Court has taken increasingly seriously, even when it comes to the private lives of highly public figures such as Princess Caroline of Monaco. Surely, Estonian islanders deserve as much privacy?

Such privacy interests would be undermined by the kind of filtering regimes the Strasbourg chamber seems to be promoting in effect—as the Court of Justice of the European Union, which has handled several cases under the ECD, recognized in its recent judgment in Sabam v. Netlog. A much more elegant solution can be found in the system currently under consideration in the UK, whereby posters would be required by the host to identify themselves only after a complaint has been made and only if they wish to defend the legality of their comments (if they chose to remain anonymous the content is taken down; and of course they can be sued separately if identified).

The chamber ruling in Delfi seems so misguided and its implications for online free expression in Europe and beyond so concerning that it would make a strong candidate for reconsideration by the 17-member Grand Chamber of the Court. There is no automatic right of appeal to the Grand Chamber, but if Delfi chooses to request a so-called discretionary referral to the top body, the court would be well advised to accept it.

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Better democracy goes with electronic direct democracy. This train just started moving and the enemies of an open society are aware of this. They hate 'other' voices. They hate net freedom.

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