Publishers beware: European Court of Human Rights imposes liability for anonymous defamatory comments

This week, the European Court of Human Rights ruled that it was 'practical and reasonable' to hold website Delfi.ee legally accountable for anonymous comments. A further examination of the judgement reveals the Court ruling publishers that operate commercial websites are not granted the same protections as other Information Service Providers. The ruling may have grave repercussions for commercial publishing site operators.

This week the European Court of Human rights ruled that an Estonian portal that had failed to remove offensive comments from a news story could not rely on Article 10 freedom of expression rights and was found liable for damages. The case can be traced back to a company’s decision to change the route its ferries took to certain islands causing ice to break where ice roads could have been made in the near future. As a result, the opening of these roads – a cheaper and faster connection to the islands compared to the ferry services – was postponed for several weeks. An article appeared on a website called Delfi.ee. The article itself wasn’t defamatory, but rather the emotive article provoked comments of a defamatory, offensive and threatening nature. Although this case will likely be appealed to the Grand Chamber, if it stands as good law there could be massive implications for website operators and web-masters throughout Europe. The ruling allows for damages to be paid to individuals who have been defamed through anonymous statements posted beneath news stories. Although the case seems to fly in the face of European and domestic jurisprudence, ultimately the case may be limited to the nuances of Estonian law dealing with companies who are also web publishers.

Ice roads not being available brought ire of Estonians to Delfi.ee

This case has been commented on the basis of Article 10 European Convention of Human Right freedom of expression. However, it appears the court could also be moving towards stronger protection of reputation rights, as protected by Article 10(2) ECHR which limits the rights of free speech. Although European convention rights protect freedom of expression, this right is not unqualified.Under our domestic law, an online information service provider is not liable for defamatory comments until they gain ‘actual knowledge’ of illegal content being hosted. In Godfrey v Demon Internet, a professor who was defamed on a bulletin board service sent a fax demanding that the comments come down. When they refused to act on the fax (in truth no-one knows what happened to the fax), Demon became liable for the defamatory comments. This comes from the e-commerce directive which protects information service providers from illegal content travelling across their website. The case goes on to confirm what we already know: once you're put on notice a website operator needs to take down defamatory comments unless there is some sort of defence.

Delfi.ee is a popular news site

However, in the present case, material for which the website was held liable had not been the subject of the notice and take-down mechanism. It was taken down promptly ("without delay") when the victim notified the website. That contrasts with the situation in the aforementioned Godfrey case. Interestingly, there is not much comment from the ECHR on Delfi.ee role as an intermediary. The Estonian court's decision that the defendant was not an Article 14 hosting provider is contrary to the CJEU's holding in Sabam v Netlog. In this case Netlog was ruled to be a hosting service within the meaning of Article 14 of Directive 2000/31 in that it owns a social networking platform and stores information provided by the users on its servers.The role of intermediaries was not explored by the ECHR and they don't seem to have assigned any value to Delphi.ee operating in this role - other than a general remark about the importance of freedom of the press, which is a substantially different matter. The case appears to impose obligations on the web host to monitor comments on news stories in violation of the e-commerce directive. Luckily, they didn’t go as far as saying the monitoring has to be ex ante. However, the e-commerce directive doesn’t protect things like hate speech, and this seems to be a This underlies the restricted nature of the secondary responsibility defence in the 1996 Defamation Act with its exclusion of commercial publishers from secondary status.The odd thing about the case is that the Court has thought about the role of intermediaries in the form of the e-commerce directive. The court had no doubt that Netlog - who operated an online social network - was an Article 14 host. There is very little in the judgement to suggest that Delphi.ee is really any different from Netlog. In the present case, publication of articles and comments on an Internet portal was also found to amount to journalistic activity and the administrator of the portal as an entrepreneur was deemed to be a publisher can be seen, in the Court’s view, as application of the existing tort law to a novel area related to new technologies.The judgement then goes on to make big sweeping statements referring to the web operator as a professional publisher: “The Court accordingly finds that, as a professional publisher, the applicant company must at least have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delphi.ee news portal is one of the largest in Estonia, and also that a degree of notoriety has been attributable to comments posted in its commenting area. Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail.” This has been an issue in the UK’s libel law. In an important case for internet intermediaries, the court ruled that Google was not a publisher for libel of its search results, however, this isn’t absolute. When Google hosts a blogger, liability can attach to the service provider. When that is the case, Google could be a secondary publisher at the time it is a host. The UK leans in a contrary direction: more involvement, not less will create liability and not remove/avoid it (the moderation rule will change when the new Defamation Act is in force).Arguably, the case turns on the protection of reputation. The Court had to decide whether or not restricting freedom of expression in order to protect reputations was a legitimate restriction on Delfi.ee’s freedom of expression. The case also acknowledges the additional right of Article 8 protection for the right of privacy, and as a subset of this right, reputation.