Website comments - are you liable?

26 August 2015 | Author: Vicky Milner
Internet comments crop

 

Is a website owner responsible for comments posted on the website?  How is a business supposed to monitor and manage anonymous comments if it has thousands of followers?  Is placing liability on the owner a breach of the right to freedom of expression? 

These are the issues raised by the case of Delfi AS v Estonia which was recently heard by the European Court of Human Rights (“ECtHR”). Advocate Vicky Milner of Callington Chambers answers questions about the implications of the case and the court's rulings.

 

What was this case about?

Delfi is one of the largest internet news portals in Estonia.  At the end of each article it has an “add your comment” tab.  Comments are uploaded to the website automatically.  According to the Estonian government, “Delfi had a notorious history of publishing defamatory and degrading comments”. 

An article in January 2006 attracted a number of defamatory comments “tantamount to an incitement to hatred or to violence against [a named individual, L]”.

In March 2006, L’s lawyers asked Delfi to remove the offensive comments and claimed damages.  Delfi removed the offensive comments that day and notified L’s lawyers some weeks later that it had done so.

L pursued a civil claim for damages against Delfi through the Estonian courts, which was ultimately successful. 

Having failed in an appeal to the Estonian Supreme Court, Delfi took the case to the ECtHR.

What has the ECtHR got to do with this?

The European Convention on Human Rights (the “Convention”) was implemented in the aftermath of the Second World War.  It aimed to defend civil liberties from attack by public authorities, in light of the atrocities committed by the Nazis. 

All member states of the Council of Europe are parties to the Convention.  This includes Estonia, which joined the Council of Europe in 1993.  Accordingly, Estonian public bodies, including its courts, are under a duty to comply with the Convention.  As a consequence, Estonian courts must apply the law in a way which is compatible with Convention rights.

If a public body in a country which has signed up to the Convention (such as the Estonian Supreme Court) is alleged to have breached Convention rights, a victim can bring a case before the ECtHR against the government of the country in question.

What were the human rights issues here?

Like any individual, under Article 8 of the Convention, L had a right to “respect for [his] private and family life”.  A failure by the government of Estonia to uphold this right, by limiting a court’s ability to take action in claims involving defamation, hate speech and speech inciting violence, would have breached L’s rights.

However – somewhat surprisingly perhaps – companies are also protected by the Convention.  Delfi argued that holding it liable for the comments posted by readers on its website infringed its right to freedom of expression under Article 10.  Delfi noted that internet media content created by users often raises serious debates which make a huge contribution to democracy.  It was suggested that the Estonian Supreme Court’s judgment had had a “chilling effect” on freedom of expression and had restricted Delfi’s ability to impart information, amounting to “the establishment of an obligation to censor private individuals”.

But the website owner didn’t write the comments, so why should it be liable?

The fact that the defendant was not the writer of the comments did not mean that it had no control over the environment in which the comments were published.  Delfi’s website encouraged comments and had put in place rules for use of the website.  It could make changes to or remove comments.  The fact that a website owner might have decided not to apply its own rules in any given case did not mean that it had no control over comments posted.

What about freedom of speech? 

The Convention right to freedom of expression (under Article 10 of the Convention) is not absolute.  Exercise of this right by individuals may be circumscribed by signatory states:

“…[as] necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others…”

So, for example, a state which is a signatory to the Convention may be permitted to block drug-trafficking websites or websites which promote illegal sexual activities.  Where there are conflicting freedoms (ie where one person’s rights under the Convention clash with someone else’s rights) a court’s duty will be to conduct a balancing exercise.  

Isn’t this effectively ordering web businesses to try and police the internet – an impossible task?

This is where law enforcers, owners of proprietary information, “cyber victims” and technologists may take different views.  Technologists tend to focus on and celebrate the freedom of the internet.  This freedom is multi-faceted but is not necessarily innocuous or benign.  Obviously, communication and exchanges of information can be harmful, such as when technology is used to promote or facilitate acts of violence against a person.  The fact that it may be very difficult to manage such digital exchanges does not mean that governments can abdicate all responsibility for protecting the rights of citizens.  Governments will aim to put in place appropriate systems to prevent and tackle crime, including by the implementation of laws and giving courts the power to enforce them.

What factors did the ECtHR take into account when reaching its decision?

Here the role of the service provider was not neutral or passive. Delfi had knowledge of and control over the comments placed upon its website.  It was not disputed that the comments in question had been defamatory and Delfi had “assumed a certain responsibility for such comments”.

Further: 

“[The] impugned comments…mainly constituted hate speech and speech that directly advocated acts of violence…the remarks were on their face manifestly unlawful.”

What was the outcome?

The ECtHR noted that:

“…speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10…”

It noted a government’s need to strike a fair balance when trying to protect conflicting freedoms.  Delfi was a news portal operating on a commercial basis and it had taken insufficient measures to remove the offending comments without delay.  The sanction imposed on Delfi by the Estonian courts had been “moderate”.

Held:

“[The] measure [taken by the government of Estonia, via its courts] did not constitute a disproportionate restriction on the applicant company’s right to freedom of expression.” 

There had been no violation of Article 10 of the Convention and Delfi’s claim was dismissed.

Does this ruling have any bearing on publications in the Channel Islands?

Yes.  While the legal systems of the Channel Islands are largely separate from and independent of both the UK and the EU, this judgment is relevant for reasons including the following:

(i)               The judgment is primarily about Convention rights.  The Convention has been incorporated into the laws of the Channel Islands, giving rise to rights and obligations within these jurisdictions.  As a consequence, a decision of the ECtHR is of direct relevance to the Channel Islands.

(The meaning of “within these jurisdictions” when discussing web law does give rise to a host of other questions, including in relation to contract law and private international law/conflict of laws.)

(ii)              While the Channel Islands are protective of their legal systems and wary of dilution of their autonomy, the legislation and judicial decisions of the Channel Islands are influenced by developments elsewhere, particularly in the UK and Europe.

As a consequence, Channel Island organisations and individuals which/who allow third party comments (including anonymous comments) to be posted on their websites will need to consider their legal responsibility for such comments.

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More information can be found by following the links below.  You can also contact Vicky Milner at Callington Chambers if you have questions about the impact of this decision on Jersey businesses.

Case summary:

http://www.callingtonchambers.com/assets/2015-Case-summaries/2015.07.01-Delfi-AS-v-Estonia.pdf

Full judgment:

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-155105

 

vicky.milner@callingtonchambers.com

+44 (0) 1534 510250

www.callingtonchambers.com

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