Out-Law News 4 min. read

News websites can be forced to proactively remove unlawful user comments 'without delay', rules ECHR

Online news providers could be required to proactively remove unlawful user comments on their stories as soon as they appear, according to a new ruling by the European Court of Human Rights (ECHR).

Placing such obligations on online news providers does not disproportionately infringe on those companies' freedom of expression rights, the ECHR ruled. For the obligations to be considered a proportionate interference with those rights, they must be written into EU or national legislation or have been established by case law, pursue at least one legitimate aim and be necessary in a democratic society, it said.

In a case stemming from Estonia the ECHR was considering what responsibilities countries that subscribe to the European Convention on Human Rights (the Convention) can reasonably expect online news providers to fulfil to avoid being held liable for unlawful user comments.

In January 2006 the website of online news provider Delfi published a story about a ferry company which had broken ice that was earmarked for the establishment of new 'ice roads' linking the Estonian mainland and the islands. The story attracted unlawful comments by readers in the comments section.

When a senior figure at the ferry company complained about the comments about him that had been posted, Delfi removed the comments from the site. The comments had remained on the site for six weeks.

The Estonian Supreme Court ruled in 2009 that Delfi was liable for defamation. The Estonian court said that Delfi was under a legal duty to prevent unlawful comments appearing on its site. Delfi was operating systems intended to catch offensive content, but those systems did not catch the content in question. The court said that Delphi it should have been aware of the comments posted by users and that its failure to remove the comments for six weeks constituted a breach of Estonian law.

Delfi challenged the judgment and claimed that it represented an infringement of its freedom of expression rights. Delfi lost an appeal before the ECHR in 2013 but lodged the subsequent appeal before the Grand Chamber of the ECHR which has now ruled on the case.

Based on the facts in the case, the Grand Chamber said that it was reasonable for the Estonian court to consider Delfi to be a publisher of the unlawful comments of its users. In a split decision, it held that the measures that Delfi had in place to prevent and respond to unlawful comments appearing on its site were insufficient to enable the company to avoid being held liable for defamation.

The court considered the context of the comments that appeared on the Delfi site, the liability of the authors of the comments and the measures Delfi had taken to address the existence of the unlawful comments on its site when reaching its judgment.

The ECHR ruled that Delfi had "exercised a substantial degree of control over the comments published on its portal" and that it had been "sufficiently established" that Delfi's involvement in their publication had not merely been in the role of "a passive, purely technical service provider".

This distinction was important because, under the EU's E-Commerce Directive, service providers are generally not responsible for the activity of those using their service and EU countries must not put them under any obligation to police illegal activity on its service. However, under the Directive, service providers can be held liable for others' infringements via their services if they obtain "actual knowledge" of the illegal activity and then fail to act expeditiously to remove or to disable access to the infringing content.

The ECHR also held that the comments posted on the Delfi site "mainly constituted hate speech and speech that directly advocated acts of violence". Because of that, the authors of those comments could themselves not rely on a freedom of expression defence to avoid liability, it said.

However, the ECHR found that there had been difficulty identifying who the authors of some of the comments were due to their anonymity on the site and that there had been "a lack of instruments put in place" by Delfi to help identify who was responsible for comments on their site to help "a victim of hate speech to effectively bring a claim" against those comment authors.

At the time of the unlawful comments in January 2006, Delfi had in place some steps to prevent and respond to unlawful comments appearing on its site. According to the ECHR's judgment, Delfi used a legal disclaimer to warn users that it was prohibited to post comments "contrary to good practice or [which] contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities".

Delfi also relied on an "automatic word-based filter" to identify and censor comments and also allowed users to report inappropriate comments to it via a complaint button displayed on its website. Site administrators sometimes "removed inappropriate comments on their own initiative", the ECHR said. Delfi has subsequently opted to "pre-monitor" all comments submitted by users before they are posted.

The ECHR identified deficiencies in the word filtering system used by Delfi and said that it is easier for "a large commercial internet news portal to prevent or rapidly remove" hate speech than it is for victims of those comments to "continuously monitor the internet" for them.

The ECHR said that notice-and-take-down mechanisms can serve as "an appropriate tool for balancing the rights and interests" of comment authors, news organisations and victims of unlawful comments if they are "accompanied by effective procedures allowing for rapid response". However, it said sometimes it can be justified to impose more onerous obligations on "internet news portals".

"In cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals … the Court considers … that the rights and interests of others and of society as a whole may entitle [countries that subscribe to the Convention] to impose liability on internet news portals, without contravening [freedom of expression rights laid out in the Convention], if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties," the ECHR ruled.

The fact that the penalty imposed on Delfi by the Estonian Supreme Court and the fact that it did not have to alter its business model in response to the Estonian court's judgment were other factors showing that the interference with Delfi's freedom of expression rights had not been disproportionate, the ECHR said.

The case indicates the challenges that businesses face when they allow users to post comments. Under the UK’s Defamation Act, complainants are steered towards taking legal action against the people who have posted the apparently objectionable material, rather than the operators of sites on which that material is posted. This case indicates a potential divergence from the UK approach.

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