Thanks go to Mile Hancock for writing on Wednesday in Techdirt about an absurd ruling by the European Court of Human Rights (ECHR) last fall. In upholding a ruling by an Estonian court regarding comments made on a website, the ECHR has decided that any website that allows comments can be liable for those comments even when the website takes down the comments automatically following complaints. In other words they should have predicted that the content would result in defamatory comments before they were ever written!
As Hancock contends, and we concur, this is an insane interpretation of the facts of the case. In defying logic the Court sets a dangerous precedent against free speech. When coupled with the recent decision by the European Court of Justice regarding taking down of past content from Google, it makes for an especially dangerous climate and assault on common sense.
Very simply, you shouldn’t blame a site for the comments of others. Even in making its conclusions the Court acknowledged that the news article in question was fair and balanced and a matter of public interest. This of itself should be reason to conclude that any unfairly inflammatory comments could not be anticipated to go beyond the “boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech.” The Court ignored the fact that the site had filters in place to block vulgar words and a notice-and-takedown system. Instead it stated that the applicant company “was in a position to know about an article to be published, to predict the nature of the comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public.” What a stretch.
The Court conceded that the site faced a daunting monitoring task but argued that the defamed party was more egregiously harmed and would continue to be “forever” as the comments circulated ad infinitum on the internet.
The writer and others were sufficiently outraged by the ruling to push for its being reversed. Again, we are in agreement. The matter is up for reconsideration by the Court in July. We can only hope that reason prevails and this miscarriage of justice is remedied. If not then the possibility that comments will not be allowed by websites will be in play. This is not good news for advocates of free speech and an open internet.