Introduction

The Chamber of the First Section of the European Court of Human Rights (the “ECHR”) has recently handed down a controversial decision1 which has the potential to impose liability on internet portals for comments posted by third parties, despite effective take-down procedures being in place. The ECHR found Estonia’s most popular Internet news portal, Delfi AS (“Delfi”), liable in damages for defamatory and anonymous comments posted by third parties on its websites.

This decision also has the potential to seriously affect the future of online comment threads.

Background

Delfi posted an article in 2006 covering route alterations by SLK, a ferry company which provided public transportation between mainland Estonia and two of the country’s larger islands. The article also referred to how the company had “destroyed planned ice roads”, which are public roads over the sea.

Whilst the article itself was not defamatory, it attracted 185 comments, about twenty of which were threatening and offensive posts against the company’s owner and sole shareholder. The comments were taken down the same day following a request from SLK’s lawyers, but Delfi refused an additional claim for non-pecuniary damages of €32,000. Estonia’s County Court found against Delfi and awarded SLK’s owner damages in the sum of €320 for “[violation] of his personality rights”.

Estonia’s Supreme Court upheld the County Court’s decision. It ruled that Delfi is a provider of content services and distinguished it from an information service provider (“ISP”) and the applicable provisions of the e-Commerce Directive2. According to its 2009 decision, both Delfi and the third parties who posted the comments were publishers of material in dispute. The Supreme Court said that Delfi had a legal obligation to avoid causing reputational damage, and it should have prevented publication of the defamatory material.

ECHR Decision

The matter ultimately came before the ECHR which handed down its decision in October 2013. This decision has yet to be finalised. The ECHR considered whether the Estonian Supreme Court had unjustifiably and disproportionately restricted Delfi’s right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”). It had to strike a balance between this Article 10 right and the preservation of personality rights of third persons under Article 8 of the Convention, namely those of SLK’s owner.

In a unanimous decision, the ECHR held that there was no infringement of Article 10 of the Convention and it ruled against Delfi. The domestic courts’ finding that Delfi was liable for the defamatory comments posted by its readership was, according to the ECHR, a justified and proportionate restriction on the internet company’s right to freedom of expression.

The ECHR analysed the case before it by reference to four factors, as follows:-

  1. The context of the posts

The ECHR stated that “given the nature of the article, the company should have expected offensive posts, and exercised a degree of caution so as to avoid being held liable for damage to an individual’s reputation”. The ECHR appeared to endorse the principle by which if there is “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,” an Internet news portal is expected to exercise a special degree of caution in order to avoid defamation of another person’s reputations.

  1. Measures taken by Delfi to prevent publication of the defamatory posts 

Notwithstanding Delfi’s disclaimer and notice-and-take-down policy, the ECHR held that the measures in place to prevent publication of defamatory material were insufficient. The news portal’s word-based filter, which deleted comments based on stems of vulgar words, was relatively easy to circumvent. Further, the notice-and-take-down policy did not ensure sufficient protection to third persons. The ECHR referred to how Delfi could take additional technical or manual measures prevent publication of defamatory posts.

  1. Whether liability could be imposed on those who posted the comments 

The ECHR referred to the technical challenge of identifying anonymous authors of defamatory comments. In its view and in light of Article 8 of the Convention, it was disproportionate to put the onus of identifying such persons on the injured party, namely SLK’s owner.  The ECHR also noted that it was Delfi’s choice to allow comments from unregistered users.

  1. The consequences of the domestic proceedings for the applicant company

The ECHR noted that Delfi had an economic interest in the number of posts and comments, which had a direct impact on its advertising revenues. It seemed to infer that commercial motivation may induce websites to allow the maximum number of unchecked anonymous comments. If this is the case, the ECHR reasoned that news websites should be held liable for that business decision:- “Making Delfi responsible for the comments was therefore practical; but it was also reasonable, because the news portal received commercial benefit from comments being made.”

Comment

The ECHR attempted to strike a balance between intermediaries’ liability, freedom of expression and personality rights. However, it is a serious blow to freedom of expression online and it arguably displays a lack of understanding of the issues surrounding intermediary liability. It has also caused greater legal uncertainty in this area of the law.

Whilst the ECHR was concerned to protect an individual’s rights online against powerful companies, it failed to appreciate the role of Internet intermediaries as the gateways to the exercise of free expression. Little comfort will be taken from the comments of an ECHR spokesperson that the ruling was only in relation to the particulars of Estonian law and was not applicable to other cases, except by way of case law.

Unless the decision is successfully appealed to the Grand Chamber, where posts from non-registered users are allowed and there is a higher-than-average risk of defamation, a professionally-managed and commercially based internet news portal may need to exercise the full extent of control at its disposal. According to this decision, it must go beyond automatic filtering and notice-and-take-down procedures in order to avoid liability.

This is a worrying development for website operators and moderators. It has the potential to significantly alter the liability landscape for anonymous comments on internet portals if allowed stand as a precedent. Some commentators have even suggested that internet news portals should close their comment section to avoid liability until this decision has been overturned.

Notwithstanding this troubling decision, online liability for defamation will continue to be considered in an Irish setting in the context of the e-Commerce Directive and ISP liability, and in the context of the defence of innocent defamation pursuant to the Irish Defamation Act 2009.