Out-Law News 4 min. read

Online publishers need to 'exercise a degree of caution' when posting stories that could attract critical comments, rules ECHR

Online publishers seeking to avoid liability for defamation over readers' comments should expect that some stories will attract negative comments and "exercise a degree of caution" about how they moderate comments, the European Court of Human Rights (ECHR) has ruled.

In a judgment which may yet be appealed to the Grand Chamber of the Court, the ECHR rejected the arguments of Estonian online news publishers Delfi that its rights to freedom of expression had been unfairly affected as a result of rulings issued by courts in Estonia.

The ECHR ruled that it was both "justified and proportionate" to restrict the media organisation's freedom of expression rights and for the company to be found liable for defamation.

The ECHR reviewed the context in which the comments on the story were published; the system of moderation Delfi deployed; the ease with which the authors of the comments could themselves be held liable for the comments they made, and the consequences of the Estonian court rulings for the publisher.

It said that the Delfi ought to have been aware of the context in which it was publishing the story and anticipated readers' unacceptable criticisms and therefore adopted a suitable system of moderation to address this.

In 2006 Delfi reported that ferry company Saaremaa Shipping Company (SLK) had changed its routes between the Estonian mainland and some of its islands. The report said that as a result of this, SLK had broken ice that was forming and which was being earmarked for the establishment of new 'ice roads' linking the mainland and the islands.

Some readers left comments that said that being able to travel between the mainland and islands on the ice roads would have been both faster and cheaper than using the ferry. Others posted disparaging comments about SLK's owner who successfully sued Delfi in the Estonian courts for around €320 in damages after judges ruled that the website operator was responsible for defamatory comments by its users which remained on the site for six weeks before being removed.

Following the Estonian court proceedings Delfi changed the way it moderated comments. It opted to "pre-monitor" all comments submitted by users before they were posted, but it argued before the ECHR that it had been forced into the move by the Estonian courts and that the measures amounted to an unfair restriction on its freedom of expression rights.

Previously, Delfi had relied on a dual system of moderation that consisted of an "automatic word-based filter" and users reporting inappropriate comments to it via a complaint button displayed on its website.

The ECHR said that it supported the Estonian courts' view that Delfi's "prior automatic filtering and notice-and-take-down system ... did not ensure sufficient protection for the rights of third persons". It added that whilst Delfi had "a substantial degree of control" over user comments, it "did not make as much use as it could have done" of the controls at its disposal in the case of the SLK owner.

Furthermore, it said that Delfi had been given "leeway" by the Estonian courts about which new moderating processes to deploy, and that this was "an important factor reducing the severity of the interference with its freedom of expression".

Another factor was that users could post comments anonymously on Delfi's site, thereby reducing the ease with which the authors of the comments themselves could be pursued directly in a defamation claim, the ECHR said. Because Delfi stood to gain commercially from advertising revenues by publishing the SLK story and permitting comments on it was also a factor which the ECHR weighed when making its judgment.

The Court said that Delfi ought to have been aware of the context in which it was publishing the SLK story, as well as the chances of it attracting unacceptable criticisms of SLK and its owner from readers, the ECHR said.

"By publishing the article in question, [Delfi] could have realised that it might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech," the ECHR said.

"It also appears that the number of comments posted on the article in question was above average and indicated a great deal of interest in the matter among the readers and those who posted their comments. Thus, the Court concludes that [Delfi] was expected to exercise a degree of caution in the circumstances of the present case in order to avoid being held liable for an infringement of other persons’ reputations," it said.

"[Delfi] was in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public," the ECHR said.

Media law expert Ian Birdsey of Pinsent Masons, the law firm behind Out-Law.com, said that small publishers with limited resources and major news organisations that report on hundreds of articles every day each face practical challenges in pre-moderating user comments.

"The danger in pre-moderating content, including user generated content, is that it will arguably fix that entity with ‘actual knowledge’ of unlawful activity or information such that the defence under the E-commerce Directive/Regulations will not be available," Birdsey said. "There is also a real risk in pre-moderating some but not all content. It is a step further to require publishers or ISPs, for example, to predict which online stories may generate negative comments from readers that may be defamatory."

The ECHR said it was not its place to consider Delfi's case in the context of domestic legislation. Estonia, like the UK, has introduced specific rules on the liability of service providers that stem from the EU's E-Commerce Directive.

Under the E-Commerce Regulations in the UK, service providers can be found liable for unlawful material they host. A web host can avoid liability if it did not have "actual knowledge of unlawful activity or information" and if it "acts expeditiously to remove or to disable access to the information" if it obtains that knowledge.

New rules relating specifically to website operators' liability for defamatory comments are set out under the UK's Defamation Act, which received royal assent earlier this year.

Under the Act, website operators can be pursued by those who claim they have been defamed as a result of comments on their site even if those operators are not the author of those comments. If authors cannot be identified by those allegedly defamed, website operators could become liable for the comments if they fail to respond in accordance with new regulations which have yet to be drafted. The regulations will set out the actions website operators must take when notified of the existence of defamatory complaints on their site.

Website operators are, however, unable to be pursued for defamation purely on the basis that they act as a moderator of comments on their site under the new rules.

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