A report published by the BBC has highlighted the challenges that user comments pose for website providers.
The usual position is that an Internet service provider (“ISP”) which performs only a passive role in facilitating postings on the Internet is not the publisher of that information. If, however, an ISP performs an editorial or monitoring function, it could be found liable for unlawful material hosted on its systems. Critically, if an ISP monitors the content on its system in order to remove unlawful material, but does not remove such material, it may be found to be a publisher of that material.
THE IMPACT ON WEBSITE PROVIDERS
The BBC’s report suggests that complying with the above obligations is seen as too time consuming and risky for some website providers. The report cites two website providers; The Verge and The Daily Dot, who have recently closed their comment sections. Ostensibly, these website providers closed their comment sections because they were either too hard to manage, or (conversely) because they were not generating enough traffic. However, the challenge of mitigating the risk of legal liability may also have been a factor in the decision to close the comment sections.
DELFI AS V ESTONIA
The European Court of Human Rights (“ECHR”) has recently ruled that news websites can be made to proactively remove unlawful user comments “without delay”. This case concerned comments made on the website of the Estonian online news provider Delfi. 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 been only as "a passive, purely technical service provider". The ECHR further ruled that the mechanisms established by Delfi to identify and censor comments and to allow users to report inappropriate comments were not sufficient.
The ECHR further ruled that "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,".
RELIEF FOR WEBSITE PROVIDERS?
Under the Defamation Act, complainants who are defamed should try to take legal action against the people who have posted the apparently defamatory statements, rather than the providers of websites on which the material is posted. ISPs can be held liable for comments they host in some circumstances but can follow a process to benefit from a defence against that liability under the Defamation Act. The Delfi case however indicates a potential divergence from the UK approach.
The law relating to liability of ISPs for material posted on their websites is not necessarily always clear. There is scope for ambiguity in its interpretation, particularly in relation to the degree of knowledge and control that an ISP has over material posted. The fact that Delfi had procedures in place to capture and remove unlawful comments did not absolve it of liability. There may therefore be a move towards more ISPs closing their comment sections in the future, although this remains to be seen.