Decision Making Internet News Portals Liable for User Comments Could Reach Beyond Europe
A European Court of Human Rights ruling holding Internet news portals liable for user comments could chill online freedom of expression in Europe and elsewhere, said free speech advocates and a media lawyer in interviews after Tuesday's decision. Delfi AS v. Estonia binds only the 47 Council of Europe member countries, but it could inspire nations that haven't regulated in that area to follow the ECtHR's lead, said Gabrielle Guillemin, senior legal officer for Article 19, which works to combat censorship. It's a "significant decision" that may lead to a more cautious approach even outside Europe to content and intermediary liability, said Bermans (U.K.) communications attorney Steve Kuncewicz.
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Freedom of speech in Europe has been badly hit, said Delfi Editor-in-Chief Urmo Soonvald in a statement. He said he's "glad that Delfi has been developing and improving its user generated content, notwithstanding the decisions maturing in the European corridors of justice."
Delfi, one of the largest Internet news sites in Estonia, had an article in January 2006 about a ferry company's decision to change its routes to certain islands, the ECtHR said. That caused ice to break where ice roads could be have been built, delaying the opening of the roads, which were a cheaper, faster way to the islands, it said. Many readers posted highly offensive or threatening comments about the ferry operator. Delfi took down the offensive comments about six weeks later, but the ferry company owner obtained a judgment in the national courts finding Delfi responsible. Delfi appealed to the human rights court on the grounds that the Estonian judgment violated its right to impart information under Article 10 of the European Convention on Human Rights.
The ECtHR focused on four aspects of the case: (1) The extreme nature of the comments and that Delfi was a commercial news portal. (2) That Delfi made it unrealistic for the ferry company owner to locate commenters to sue for defamation because it allowed them to post without registering their names. (3) That although Delfi had procedures for preventing or removing hate speech and speech inciting violence, it didn't filter out the statement of hatred or blatant threats to the ferry company owner, and the comments stayed up for six weeks. (4) That Delfi was ordered to pay only a 320-euro ($365) fine. The ECtHR held that in posting the defamatory comments, Delfi went beyond being merely a "passive, purely technical service provider" and was liable for those comments. The decision said it didn't relate to other Internet forums such as bulletin boards or blogs with user-generated content.
The decision is "potentially very significant" because EU law has long allowed, under the e-commerce directive, websites and forums to largely escape liability for defamatory comments posted by anonymous users, Kuncewicz emailed. Delfi is a "rare case dealing with particularly extreme comments which amounted to hate speech," and the ECtHR criticized the news portal for not doing enough to weed out the messages and users, he said. The decision suggests that intermediaries and platforms are liable for "manifestly unlawful" content posted by users but doesn't define the term, he said. It also said "proactive monitoring" of Web users may now be required, he said.
Article 19's concern is that the standard the ECtHR has suggested might inspire other countries to adopt a similar standard when they regulate on this issue, Guillemin said. Delfi took the position that it was more akin to an Internet intermediary than a traditional publisher, but the court didn't see it like that, she said. Online news portals covered by the decision will now have more onerous liabilities and duties than other Internet platforms, she said. This potentially puts Internet news websites at a "huge disadvantage" to other platforms at a time when the news industry is trying to develop new business models, Guillemin said.
For any Web portal with an Estonian-facing site or that markets in Estonia "this creates concern," said Steptoe & Johnson (Washington) telecom and new-media lawyer Markham Erickson. Although the court limited the ruling to news portals, it's still potentially applicable to any website that offers services in Estonia, because there's sometimes little difference between a blog and a news site, he said.
Those who advocate for free speech online "are concerned that this ruling will crush debate on issues of public interest," said the Computer & Communications Industry Association, which filed an amicus brief in the case. News portals will be forced to allow only "limited and heavily monitored and censored user comments," said CCIA Europe Director Christian Borggreen. The ruling creates uncertainty about the existing European framework that has allowed online society to flourish, he said. CCIA fears the decision could harm investment in the maintenance, development and creation of new online platforms, he said. It "may lead to a return to a more cautious approach to content and liability and may actively discourage US publishers from investing in the EU," Kuncewicz wrote.