News websites can now be held responsible for the content of user-generated comments, under a landmark judgment of the European Court of Human Rights (the ECHR).
During 2006, Delfi, a major news website in Estonia, ran a news story on ice roads. This inspired a number of reader comments, including abusive and defamatory comments about the owner of a ferry company involved. The owner of the ferry company requested these comments be removed under Delfi's "notice and take down" policy, and that he be paid compensation. While Delfi removed the comments, they refused to pay the €320 in damages. After losing the case in the domestic courts, Delfi brought the matter to the ECHR, unsuccessfully claiming that being found liable for its users' defamatory comments was a breach of its freedom of expression rights. On 16 June 2015, the Grand Chamber of the ECHR confirmed the decision of the lower chamber.
The key legal issue centred on Delfi's responsibility for the comments of their readers posted on their website. Delfi's defence of immunity from liability due to being a neutral intermediary under e-commerce regulations was decisively struck down, by fifteen votes to two. As Delfi exercised a substantive degree of control over the comments published and enjoyed click-based advertising, integrated in the article (meaning they had a financial interest in encouraging users to comment), the Grand Chamber held that Delfi went beyond that of a passive, purely technical service provider. Therefore, they were not protected from liability.
The Grand Chamber concluded that the lower court was correct in agreeing with the national court's finding that Delfi was liable for the comments posted by its readers and that this was a proportionate restriction on its right to freedom of expression.
This is not to say all website providers will be liable for comments published on their websites. The Grand Chamber distinguished Delfi by emphasising that they were a professionally managed internet news portal, run on a commercial basis. Further, the comments in question directly advocated acts of violence and were considered to be hate speech.
While the ECHR is not an EU institution and has no powers of enforcement, its precedents are often followed by the European Court of Justice. The decision opens the door for domestic authorities to dismiss claims of immunity made by news forums for comments made on their platforms.
Websites run by professional, commercially run publishing companies that allow users to comment on their content will need to review their moderation protocols for commenting. This places a significant burden on news sites, as they may be unable to rely on a notice-and-take-down system. News sites will either need to pre-monitor comments or remove potentially illegal content on their own initiative. They should also anticipate when stories will attract negative comments that may trigger more stringent monitoring.
The full text of the judgment can be found here.