Destroying the Wall to Get Rid of the Graffiti

You cannot, in the words of a British judge, hold the owner of a wall liable for graffiti sprayed on it in the middle of the night.
A version of this piece was originally published in Spanish on the website of El Pais, the Spanish newspaper, on November 21, 2013.

A recent judgment of the European Court of Human Rights in Strasbourg has generated a great deal of debate in Europe over holding an online portal legally responsible for offensive comments made by its readers.

Interestingly, the judgment has found some support outside Europe, including the unconditional endorsement provided by Diego Garcia Sayan, president of the Inter-American Court of Human Rights, in a recent column (in Spanish) published in El Pais. Garcia Sayan is certainly in a good position to evaluate the rulings of a sister human rights tribunal. However, it is surprising that his column makes no mention of the unusually vigorous criticism that the European court’s ruling has attracted for what it means for online free speech.

The case, Delfi v. Estonia, involved comments, some of them anonymous, left by users on the Delfi portal below an article about a ferry service disrupting ice roads, which are a cheaper and more convenient means of transportation for Estonian islanders in the Northern winter.  A few of the comments were highly offensive of one of the ferry company’s managers. The European Court concluded that the portal could be held legally liable for having failed in its supposed duty to prevent publication of the offensive comments.

However, Garcia Sayan does not mention that the portal removed the insulting comments the same day that they received a complaint from the company’s lawyers. In addition, the manager chose to send the complaint by regular mail, even though the portal had provided a one-click button on the website for reporting abusive comments.  In other words, it is hard to conclude that Delfi, which does not edit or preview the 10,000 comments it receives each day, acted as an irresponsible publisher when it had provided an easy and effective means of denouncing and removing any unlawful comments.

But, beyond the factual omissions, the bigger issue with President Garcia Sayan’s argument is the failure to pursue it to its logical conclusion.

What his column is advocating is, essentially, strict liability for all websites that carry user-generated content. To evade liability, they would need to set up a system capable of preventing any defamatory comments from appearing in the first place, even for a few hours or minutes. Such a duty would be imposed on all operations, no matter how big or small—from Facebook to your favorite small-town blogger. These filtering systems would inevitably become an instrument of prior censorship, including of legitimate speech. Very few online operations can afford the army of lawyers required to totally “cleanse” all user content of potential illegalities, so they would err on the side of caution: sanitizing all comments that “might cross the line.”

This may not be an existential issue for big news operations in the rich world. It would strike hardest, however, those online sources that Garcia Sayan acknowledges have played a crucial role in democratizing information in the digital age: independent voices in countries where the mainstream media are tightly controlled by the government or in the hands of the few.

To bring just one example, a similar ruling by a Thai court forced the country’s leading online portal, Prachatai, to shut down its user forums for a good while. With only half a dozen staff, the site had no way of screening an average of 10,000 daily comments in real time. And Prachatai’s manager received a suspended prison sentence for not acting quickly enough to remove a comment deemed insulting of the Thai monarchy.

Unfortunately, a similar scenario cannot be ruled out in Latin America, where judges and legislators have been too slow to adapt traditional rules of publisher liability to the distinct dynamics of the Internet. Furthermore, a recent ruling of the court led by Garcia Sayan, decided by a slim (4-3) majority—which Jose Miguel Vivanco rightly critiqued in El Pais as a “serious setback”—for free speech in the Americas—for the first time ever upheld a prison sentence against a reporter that denounced a case of mismanagement of public assets. One can only hope that this case will be remembered as an aberration in the history of the court’s free speech jurisprudence.

It is worth noting, as many commentators have done, that the Delfi judgment of the European Court goes in the opposite direction of prevailing tendencies in the democratic world. In both the European Union and the United States, website operators are not generally held liable for infringements by third parties—the same way you cannot, in the words of a British judge, hold the owner of a wall liable for graffiti sprayed on it in the middle of the night.

Finally, a word on the rights of common Internet users.  The strict liability approach promoted by President Garcia Sayan would likely mean an end for anonymous comments, since websites would be very reluctant to assume such liability for comments left by users that cannot be identified. Anonymity is a complex matter, and surely some users will use it as a shield for spewing invective. However, as a recent study by the World Association of Newspapers found, many editors around the world consider that anonymous comments greatly enrich and democratize online debates. And one does not need to live in North Korea to appreciate the value of anonymity. Next time you are about to make an online comment that you don’t want to broadcast to your employer, your government officials or even your mother, think about what is at stake in this debate.

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