European Court of Human Rights Delfi

European Court of Human Rights rules it 'practical and reasonable' to hold website legally accountable for anonymous comments

By Angela Haggerty, Reporter

October 11, 2013 | 4 min read

Online publications could implement compulsory identification rules within comment sections to reduce the risk of legal action over defamatory content after a European Court of Human Rights ruling.

Ruling: Delfi took an appeal to Strasbourg

Estonian news site took a case to Strasbourg after being found liable for defamation in 2006 following a debate in the comment section of a story about a ferry operator changing routes.

But the European Court of Human Rights rejected Delfi’s appeal this week and ruled that the Estonian court’s original judgement represented a “justified and proportionate restriction on the portal’s right to freedom of expression” and noted that it was both “practical” and “reasonable” to hold the site legally responsible for comments it allowed to be posted anonymously.

The court ruled: “The owner of the ferry company could, in principle, have attempted to sue the specific authors of the three offensive posts rather than Delfi. However, the identity of the authors would have been extremely difficult to establish, as readers were allowed to make comments without registering their names.

“Therefore many of the posts were anonymous. Making Delfi legally responsible for the comments was therefore practical; but it was also reasonable, because the news portal received commercial benefit from comments being made.”

Media lawyer and author of a book on the legal issues facing online corporate communications, Steve Kuncewicz, said the latest decision fits in line with broader moves towards making websites more accountable for content.

“It wouldn’t surprise me if as a result of this you’ll see platforms and websites changing their terms and conditions and terms of use when it comes to anonymous posting,” he explained.

“It’s part of the shift towards making websites and platforms more responsible for comment that’s on them and if issues like freedom of expression have been considered in this case and it has gone all the way up to Strasbourg then it certainly will be something that sets a precedent.

He added: “I think that the precedent is going to be that it will no longer be as easy for social networks, websites or platform operators to just claim liability for content that’s on their service.”

The ECHR ruling recognised that Delfi’s website did have a notification on it that authors of comments would be liable for content and it had a filtering system to automatically block comments with specific “vulgar” keywords in them.

But the court ruled that comments which did make it through the filters were not removed within an adequate time frame and upheld the original judgement on liability.

A statement from the Registrar of the Court said: “The Court held that the finding of liability by the Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts was not excessive.”

Delfi now has a three month period in which to request a referral of the case to the Grand Chamber of the Court.

European Court of Human Rights Delfi

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