According to a recent ruling of the European Court of Human Rights, the liability of an Internet news portal, who attracts visitors on the basis of commercial considerations, for the reactions which these visitors leave on his website, does not constitute a violation of the right of freedom of expression.
On 16 June 2015, the Grand Chamber of the European Court of Human Rights passed a final judgment in the case of Delfi versus Estonia. This ruling confirms the Court’s earlier decision of 10 October 2013, and judges that online news platforms can be held liable for readers’ reactions left on their websites.
1. The Background
The facts forming the origin of this decision are as follows. Delfi, an online news portal that publishes up to 330 articles each day, provides the opportunity for its users to comment on them.
This opportunity is also provided by various different online newspapers, where, as at Delfi, most people are known to make comments using a pseudonym.
Moreover, Delfi makes it clear that the users’ reactions do not reflect the opinion of Delfi, and the possibility exists to report abuse.
On 24 January 2006, an article was published entitled “SLK destroyed planned ice road”. In Estonia, ice roads are public highways, which are only open in the winter, and which form across the frozen sea between mainland Estonia and various islands. SLK is an Estonian ferry company, which is responsible for crossings between the mainland and the islands. This article gave rise to around 185 reactions, of which 20 messages contain personal threats and aggressive language addressed towards the main shareholder of the ferry company.
In response, this shareholder petitioned a national court in Estonia to have Delfi remove the reactions, and pay him compensation amounting to 32,000 Euros.
Following a legal battle in Estonia, Delfi was finally held liable for these reactions and was sentenced to pay 320 Euros compensation, for breach of the personality rights of the person in question.
Delfi filed an application to the European Court of Human Rights, as it deemed that this decision constituted a breach of Article 10 of the European Convention on Human Rights (ECHR) that guarantees the right to freedom of expression. In addition, Delfi argued that it should be regarded as an intermediary in the sense of the E-Commerce Directive, which means that it has no general duty to monitor, and cannot be held liable for not immediately removing illegal messages.
2. The Court’s Judgment
The hateful and offensive content of the reactions on Delfi’s website was not the subject under discussion. The Court was to deliberate the question whether Delfi’s sentencing constitutes a breach of Article 10 ECHR.
It should be pointed out straight away that Article 10 ECHR is not an absolute right. The second paragraph provides the possibility to limit the right to freedom of expression in as much as this is prescribed by law and necessary in a democratic society.
In its judgment, the European Court of Human Rights acknowledges the dilemma embodied by the internet. The internet, on the one hand provides an unparalleled platform for full freedom of expression, whilst at the same time opening the door to a rapid spread of messages of hate and incitement to hatred and violence.
Thus, according to the Court, this is a case in which the extent of the responsibilities and obligations of Internet news portals must be judged. After all, for financial reasons, the latter provide a platform for users to comment on previously published articles. Consequently, the Court attaches importance to the fact that the number of reactions to an article, reflects an increase in advertising revenue.
Mindful of the fact that Delfi invites its visitors to comment on articles, there is a certain predictability of reactions having negative consequences. Although Delfi had taken various steps to limit hate responses, (filter mechanism and the possibility to report abuse), this proved inadequate.
In spite of Delfi’s defence, the Court accepted that Delfi cannot invoke the E-Commerce Directive, and therefore does not enjoy the same protection as Internet Service Providers. According to this Directive, an Internet Service Provider cannot be held liable if it merely relays information, if it retains the information, or if it offers hosting services, without having an active role in them or having any effect on the information flowing through its network. These are the so-called safe harbour principles of the E-Commerce Directive. An additional condition is that it may not be aware of the illegal content of the information, and that it must promptly remove information upon learning of its illegal context.
There is still no unequivocal answer to the question whether an online service provider can be regarded as an Internet Service Provider.
In 2014, the Spanish Court of Appeal in Madrid decided that Youtube was able to invoke the safe harbour principles of the E-Commerce Directive, despite the European Court of Justice having already judged in 2011 that this was not the case for eBay.
Although, in principle, the European Court of Human Rights does not interpret the provisions of the E-Commerce Directive, attention was paid to the fact that Delfi could be regarded by the national court as a publisher, instead of an Internet Service Provider in the sense of the E-Commerce Directive.
An important consideration in this, was that Delfi exercises a large degree of control over readers’ reactions. Only Delfi had the authority to adapt or remove reactions. This led, amongst others, to the finding that Delfi does not operate as a purely technical Internet Service Provider.
The Court decided that because Delfi is a professional news portal, driven by commercial interests, and took insufficient steps to prevent the publication of hate messages, it can be held liable for them.
Moreover, the sanction imposed on Delfi by the national court was rather limited, so there is no question of a breach of freedom of expression.
3. Conclusion
Therefore, this ruling determines that an online service provider, who manages a website, and attracts visitors on the basis of commercial considerations, can be held liable for the reactions, which these visitors leave on the website.
In this context, it is not always sufficient to install filters, which screen reactions in advance, or to provide a “report abuse” button.
Even a disclaimer that states that readers’ reactions in no way reflect the opinion of the website manager, will not be enough to discharge him of liability.
On the basis of this ruling, such companies will be expected to monitor their visitors’ reactions, and wherever possible prevent publication of messages with illegal content.
In short, if an online service provider cannot invoke the safe harbour principles of the E-Commerce Directive, caution should be exercised concerning visitors’ activities on his website.
It remains to be seen whether other Internet news portals will feel that this ruling applies to them, and how this will affect their website activities.
