In the recent case of Delfi v Estonia [2015] (no. 64569/09), the European Court of Human Rights (ECHR), which is part of the Council of Europe, introduced the principle that websites could be liable for comments posted by users.

The case involved a news article that Delfi, a commercial news portal, posted on its website involving the delayed production of an ice road that linked Estonia’s mainland to islands off the country’s west coast. Threatening comments were added to the comments section directed at the director of the ferry company responsible for the delay, but were not picked up by the website’s filtering system, and six weeks lapsed before these comments were removed by the website’s operators. The article itself was balanced and concerned a matter of public interest; however, the ECHR found that Delfi should have anticipated offensive comments and been more proactive in removing the hostile comments as they were posted.

The decision taken by the ECHR affirmed an earlier judgment and highlighted a number of factors that led to Delfi being found responsible. The ECHR emphasised the ‘extreme nature of the comments’ which could be considered as hate speech; the fact they were published on a professionally run website; the insufficient measures taken by the company to control the comments; the low likelihood of prosecution for the users; and the small sanction imposed on Delfi.

The decision has been both hailed as a victory to prevent hate speech and greeted with dismay because of the chilling effect on freedom of speech. As it stands, the added requirement for proactive monitoring and the unclear definition of “manifestly unlawful” might cause websites to be over eager to remove comments published about their news articles or be less willing to allow for comments at all. Further down the line, although the decision has no immediate legal effect, it could be influential in future developments in a way that risks undermining freedom of expression.

Essentially, the decision came down to hate speech versus free speech, and the court ultimately felt that reputational protection and free speech deserve equal respect. Website operators should ensure their sites are actively monitored, but the implications of this case could affect us all if the development of law starts undermining the freedom of expression.