No article 10 breach in web publisher postings liability, Strasbourg rules
There is no violation of the article 10 right to freedom of expression in holding an internet publisher liable for clearly unlawful user-generated hate speech posted to its website, the European Court of Human Rights has ruled, in the first case in which it has ruled on a complaint about liability for such comments.
The case was brought by Delfi AS, owner of one of the largest internet news sites in Estonia. In 2006 it published an article about a ferry company which had changed the route its ferries took to certain islands, causing ice to break where ice roads could have been made in the near future, providing a cheaper and faster connection to the islands. Many readers had written highly offensive or threatening posts about the ferry operator and its owner below the article. At the request of the lawyers for the ferry company, Delfi removed the offensive comments about six weeks after their publication.
In an action by the owner of the ferry company, the Estonian court found that the comments were defamatory, and that Delfi was responsible for them. The court awarded damages equivalent to around 320 euro. Delfi's appeal was dismissed.
The Grand Chamber held by 15 votes to two that there had been no violation of article 10 (freedom of expression) of the European Convention on Human Rights.
The court said that the question before it was not whether the freedom of expression of the authors of the comments had been breached, but whether holding Delfi liable for comments posted by third parties had been in breach of its freedom to impart information.
It found that the Estonian courts’ finding of liability had been a justified and proportionate restriction on the portal’s freedom of expression, in particular, because: the comments in question had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis; the steps taken by Delfi to remove the offensive comments without delay after their publication had been insufficient; and the 320 euro fine had by no means been excessive for a company such as Delfi.
The court pointed out that Delfi had an economic interest in the posting of the comments. The actual authors could not modify or delete their comments once they were posted; only Delfi had the technical means to do this. The Grand Chamber therefore agreed that, although Delfi had not been the actual writer
of the comments, that did not mean that it had no control over the comment environment, and its
involvement in making the comments on its news article public had gone beyond that of a passive,
purely technical service provider.
Further, Delfi had not ensured a realistic prospect of the authors of the comments being held liable. The owner of the ferry company could have attempted to sue the specific authors of the offensive comments as well as Delfi itself. However, Delfi allowed readers to make comments without registering their names, and the measures to establish the identity of the authors were uncertain. Nor had Delfi put in place any instruments to identify the authors of the comments making it possible for a victim of hate speech to bring a claim.