In an extremely shocking, and almost unbelievable decision, the European Court of Human Rights (ECHR) in Strasbourg has ruled that the Estonian news site Delfi can be held accountable for the content of defamatory comments left anonymously by its readers in the comments section of published articles. The decision directly contradicts the European Union’s e-commerce directive, which ‘guarantees liability protection for intermediaries that implement notice-and-takedown mechanisms on third-party comments.’ According to Peter Micek, Senior Policy Counsel at Access, it may have ‘dramatically shifted the internet away from the free expression and privacy protections that created the internet as we know it.’
According to a post by Media Legal Defense Initiative (MLDI), which gives a summary of the reasons why the ECHR arrived at its decision, ‘the “extreme” nature of the comments which the court considered to amount to hate speech, [and] the fact that they were published on a professionally-run and commercial news website,’ as well as ‘insufficient measures taken by Delfi to weed out the comments in question and the low likelihood of a prosecution of the users who posted the comments,’ all impacted on the ECHR’s decision to hold the Estonian publication liable. This despite (MLDI makes it known) ‘the fact that the article itself was balanced and contained no offensive language.’
‘Today’s decision doesn’t have any direct legal effect. It simply finds that Estonia’s laws on site liability aren’t incompatible with the ECHR. It doesn’t directly require any change in national or EU law. Indirectly, however, it may be influential in further development of the law in a way which undermines freedom of expression. As a decision of the Grand Chamber of the ECHR it will be given weight by other courts and by legislative bodies.’
The biggest problem, according to McIntyre, is the idea that something can now be considered ‘manifestly unlawful’. This could in effect make an intermediary so worried about stepping on the toes of the recent ECHR decision that it decides to over-censor the comments its readers make on a given topic, leading to a biased reflection of what was really felt by the general public. McIntyre is quick to point out that,
‘ [This is] something which may lead to a chilling effect where sites are over cautious in taking down material which might possibly be contentious.’
The findings of the ECHR are even more surprising and confusing when one takes into consideration the weight of opposition to this particular outcome, which included MLDI, joined by 27 media companies from around the world, intervening in the case to file a brief . From the MLDI website,
‘The brief emphasised the importance of user comments in online media, and warned that imposing liability on intermediaries could result in news websites closing down their comments sections or proactively removing and comments that they think could be offensive, which would severely limit public debate.’
Also troubling to Mr McIntyre, is the idea that the ECHR has found in favor of ‘proactive monitoring’ of internet users. He points out that this stands in stark contrast to the Court of Justice of the European Union (CJEU) ruling in the SABAM case of 2012, which found that having a hosting site censor its users content goes against EU law.
With this new ruling on the table, it is hard not to wonder how long it will be before copyright companies use this new decision to overrule the 2012 ruling – allowing them to edit out content that expresses an opinion other than the one that they would prefer to see promoted on their site.
Unfortunately for Delfi, it is likely it would have won the case if it had gone to the CJEU, but this apparently was not allowed by the Estonian courts. It is for this reason that it went to the European Court of Human rights, where it has now lost its case. Although it is unclear what this will really mean for European law, Delfi’s defeat will no doubt have direct repercussions on the amount of censorship we see on the web in Europe, amounting to another sad day for freedom of speech.