European court blames website for hosting offensive comments in ‘shock’ decision

AFP Photo/Frederick Florin
Free speech activists were dismayed after the European Court of Human Rights said that the Estonian justice system was right to fine a news website for user-generated hate comments under an article. The decision is feared to have wide repercussions.

“Despite warnings from groups defending vulnerable internet users, as well as from large media companies, the court has dramatically shifted the internet away from the free expression and privacy protections that created the internet as we know it,” said Peter Micek, the senior policy counsel of Access, an online human rights group.

The nine-year case started over a seemingly trivial article, about an Estonian ferry company that destroyed ice roads when it opened new routes. It was published in January 2006 on the country’s leading Delfi.ee news portal. The piece attracted over 20 particularly rude comments targeting the owner of the company, calling him “scum” and a “bastard,” and issuing threats against him.

The owner, Vjatšeslav Leedo, spotted the comments six weeks after the article went up, and immediately complained to Delfi, which deleted them within a day. However, Leedo went further, and sued Delfi for defamation.

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While the disgruntled shipping company owner won nominal damages of 5,000 kroon (320 euros) – one-hundredth what his lawyers wanted – the case started a legal saga referred to as Delfi AS v. Estonia. It has seen the outraged news portal go through every court until it reached the Grand Chamber of the ECHR, comprising 17 senior judges from around the continent.

But on June 16, the ECHR upheld the original court decision, claiming that the comments were “manifestly unlawful” and constituted “hate speech,” also noting that “the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.”

This was despite the judges’ conclusion that the Delfi’s article itself “was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements.”

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The decision to place the onus for the comments on Delfi goes against the European Union’s own e-commerce directive, which limits the liability of the content intermediary – in this case, the news portal. The potential unintended consequences were already spotted by two of the judges, who wrote a dissenting opinion.

“For the sake of preventing defamation of all kinds, and perhaps all “illegal” activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst,” said the opinion.

Meanwhile, online free speech advocates have been outright“shocked” by the decision, which “dashed hopes” that the court would uphold the freedom of expression that clashes with “protection of reputation.”

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Professor Lorna Woods, of the London School of Economics, also said it was “worrying” that one of the ways suggested around the problem by the judges was removing anonymous comments, meaning the legal responsibility would shifted onto only verified users. Woods also pointed out that constant moderation by websites would be no different to pre-moderation, in practice. In an interview with Ars Techica, T J McIntyre, chairman of Digital Rights Ireland, warned that the definition of “manifestly unlawful” was broad and unsupported by evidence, creating even more potential confusion among online media portals.

“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,” McIntyre said.

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