Shock European court decision: Websites are liable for users’ comments

The ruling is likely to be influential on EU courts’ thinking in future.

In a surprise decision, the European Court of Human Rights (ECHR) in Strasbourg has ruled that the Estonian news site Delfi may be held responsible for anonymous and allegedly defamatory comments from its readers. As the digital rights organization Access notes, this goes against the European Union’s e-commerce directive, which “guarantees liability protection for intermediaries that implement notice-and-takedown mechanisms on third-party comments.” As such, Peter Micek, Senior Policy Counsel at Access, says the ECHR judgment has “dramatically shifted the internet away from the free expression and privacy protections that created the internet as we know it.”

A post from the Media Legal Defence Initiative summarizes the reasons why the court came to this unexpected decision. The ECHR cited “the ‘extreme’ nature of the comments which the court considered to amount to hate speech, the fact that they were published on a professionally-run and commercial news website,” as well as the “insufficient measures taken by Delfi to weed out the comments in question and the low likelihood of a prosecution of the users who posted the comments,” and the moderate sanction imposed on Delfi.

In the wake of this judgment, the legal situation is complicated. In an e-mail to Ars, T J McIntyre, who is a lecturer in law and Chairman of Digital Rights Ireland, the lead organization that won an important victory against EU data retention in the Court of Justice of the European Union last year, explained where things now stand. “Today’s decision doesn’t have any direct legal effect. It simply finds that Estonia’s laws on site liability aren’t incompatible with the ECHR. It doesn’t directly require any change in national or EU law. Indirectly, however, it may be influential in further development of the law in a way which undermines freedom of expression. As a decision of the Grand Chamber of the ECHR it will be given weight by other courts and by legislative bodies.”

Manifestly unlawful

One of the worrying aspects of the ECHR decision is that it may encourage the idea that intermediaries are liable for “manifestly unlawful” content, without specifying what “manifestly unlawful” actually means. McIntyre points out that this is “something which may lead to a chilling effect where sites are over cautious in taking down material which might possibly be contentious.”

As McIntyre notes, also troubling is that the judgment upholds a finding that “proactive monitoring” of Internet users can be required. That contradicts the important decision in the SABAM case of 2012, where the Court of Justice of the European Union (CJEU) ruled that forcing a hosting service to monitor and filter online content violated EU law. Copyright companies will doubtless try to use the Delfi decision to undermine that key CJEU judgement.

What’s unfortunate is that Delfi would probably have won had it taken its case to the CJEU, given the e-commerce directive’s clear guidelines, but this course of action was apparently not permitted by the Estonian courts. It therefore went to the ECHR, hoping for a ruling that the Estonian law was incompatible with the European Convention on Human Rights.

As Access’s Micek told Ars: “The website argued that its ‘freedom to impart information created and published by third parties’—the commenters—was at stake. Delfi invoked its Article 10 rights to freedom of expression under the European Convention on Human Rights and the [ECHR] accepted the case.” Delfi’s unexpected defeat there is likely to have important, if subtle consequences on not just the Web, but also freedom of speech and privacy, across the European Union.

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8 Responses to “Shock European court decision: Websites are liable for users’ comments”

  1. Lynn says:

    Hmm, they know we are no longer stupid or ignorant. The truth has them making laws as fast as they can. Truth cannot be quiet anymore. That is a fact.

  2. Men Scryfa says:

    Fortunately no one comments on my blogs as they are either too afraid of getting exposed as a shill or of exposing their own ignorance.

    Saying that how can a blog administrator be liable for a comment which is added to their blog without even being aware that someone has done that?

    Madness.

    • Mikes going to help me set a blog up. Ive not been interested to do one, for reasons ill show below in email to Mike just now.
      So you have 2 blogs, is there a link to the other one on the dux bellorum site

    • Mikes email to me
      Adam,
      The problem is that you are a spammer.

      And you are.

      Sending unsolicited emails is spam.
      I know that you have an urgent need to promulgate your thoughts.

      Why not start a blog?

      I can help you do that if you wish.

      Just let me know,

      Mike

      My Reply
      Thankyou for the offer Mike. When I have more time soon then I would like to go forward with that, if it can be a simple blog and possibly not cost anything to run I hope as my financial situation is not good at the moment

      Leaving out the few university academics on my list I have never met. A lot or most are people I have known or still do know, and have had a relationship with. To my knowledge they enjoy and don’t object to the emails

      And I think this is a blurry line of interpretation, I don’t think emails to friends and colleagues ive got on well with, whove also sent me emails, google should class it as spam.

      Also, the reason I send out the emails isn’t a wish to be a nuisance spammer. Id be happier to not bother and have a quiet life doing other things. The whole reason Mike is that I realised nothing will change in the world, hoping people will just stray onto Tapblog or another blog, and wake up. I realised this and have tried to use all my ingenuity to make intriguing emails, even if just a pasted comment to make a concise incredible point. That could start the cascade in someones mind, be a catalyst, so people can open their eyes. And university academics I feel could be important minds to get into. This is the whole reason why ive emailed like I have

      And I think Mike, under the circumstances how this world is and whats facing us, this is the kind of effort and action that needs to be tried. I think with all that’s going on, that Tapblog reports on every day, unsolicitied emails are vital to try and send. (as long as theyre not offensive and if no one replies back objecting, which they haven’t)

      Ill try and send things out to smaller numbers of people, maybe that wont trigger the spam filter

      Thankyou again for the offer, I will get in touch again about it

      Adam

    • Yes but that’s the nature of the twisted double standards Satanists twisting everything, the laws and whatever to their liking, forget the facts or common sense
      I have suspected fairly recent commenter(s) on tapblog have been playing tapblog into the hands of this agenda, no doubt saying truths but I think taking it to the realms where if legislation gets passed tapblog comments will fall under the umbrella of anti hate laws online. Henry and others have taken action against this it seems, and truths told on comments section haven’t suffered

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