A recent decision of the European Court of Human Rights raises concerns for websites that host user-generated content, in particular news portals which allow users to comment anonymously.
The case arose from circumstances where one of Estonia’s largest online news portals (Delfi), published an article which attracted a number of user comments containing unlawful remarks in relation to a person referred to in the article. That person contacted Delfi, who removed the offending user comments but refused to pay damages. The aggrieved person took the matter to the Estonian courts and relied on the national implementation of the E-Commerce Directive to seek damages. The Estonian courts decided that Delfi was a publisher rather than a hosting intermediary for the purposes of the Directive and held that it was liable for damages for the unlawful comments.
Delfi then brought a case to the European Court of Human Rights, claiming that the approach of the Estonian court was inconsistent with the right to freedom of expression and information as set out in the European Convention on Human Rights. Delfi also argued that its news portal qualified for the hosting defence set out in the E-Commerce Directive, which excludes liability where the host has no actual knowledge of the unlawful content and acts expeditiously to remove it once notified.
The Court dismissed these arguments and found that there was no breach of the European Convention on Human Rights by Estonia, for two main reasons.
Firstly, the Court emphasised that Delfi was a commercial operation with an economic interest in attracting user comments and “hits” in order to bolster its online advertising revenue. Relying on its status as “one of the largest news portals in Estonia”, the Court was satisfied that Delfi “was in a position to assess the risks related to its activities … and the consequences which these could entail”. It found that Delfi should not only have been aware of the unlawful content on its website but should also have actively prevented its publication.
Secondly, the Court focused on the inadequacy of the measures implemented by Delfi to prevent publication of the unlawful content and ultimately held that Delfi’s notice-and-take-down system was not sufficiently robust to insulate it from liability. On the contrary, the voluntary monitoring undertaken by Delfi may have lead to the conclusion that it should have had knowledge of the unlawful comments earlier.
It is possible to view this decision as raising concerns for intermediaries. Many media companies operating online rely on the hosting defence and uncertainty may lead them to curtail anonymous user commenting or render them slow to report on controversial topics. It is not yet clear how broad an impact this decision will have on the online news industry. However, online news providers and other hosts of user-generated content, especially those for whom it is a key commercial activity, should consult with their legal advisers to implement a forward-looking liability strategy.