October 15, 2013

The European Court of Human Rights last week unanimously held that Estonia had not violated a website owner’s  Article 10 (Freedom of Expression) rights in ruling that it was liable for comments posted by readers beneath an article. It is unlikely the UK courts would make a similar ruling but there are warnings to be heeded for website operators.

Background

The article discussed the movement of a shipping company’s ferries from one route  to another and in doing so breaking the ice of potential locations of ice roads, as a result of which the opening of such roads – a cheaper and faster connection to the islands compared to the company’s ferry service – was postponed for several weeks.

Angry readers posted 185 comments beneath the article in the days that followed. The comments included vulgar abuse targeting the shipping company’s owner, such as:

“f****ing sh*theads…they bathe in money anyway thanks to that monopoly and State subsidies and now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. ..!”

The website, Delfi, the largest news portal in Estonia, removed the comments on the day it received a letter of claim from lawyers acting for the owner. The owner nevertheless claimed EUR 30,000 in damages in respect of publication of the comments in the 6 weeks since the article was published. Delfi refused to pay.

The lower court in Estonia at first rejected the claim, ruling that Estonia’s Information Society Service Act, which implemented the European Directive on Electronic Commerce (Directive 2000/31/EC) (the “Directive”) restricted the liability of hosts such as Delfi for user-generated content until it was on notice of them.

Article 14 of the Directive  (implemented in the UK by Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002) provides protection for websites that unknowingly store unlawful user comments, provided they act expeditiously to remove them once on notice.

The Court of Appeal quashed the lower court’s judgment however and referred the case back down. The lower court re-examined the case and found for the shipping company owner: Delfi had an obligation under local law to avoid causing damage to others and the Information Society Service Act was inapplicable. The court awarded the shipping company owner the equivalent of EUR 320 in non-pecuniary damages.

Delfi appealed, first to the Estonian Supreme Court and then to The European Court of Human Rights – which last week upheld the Estonian Supreme Court’s finding of liability.

ECHR ruling

Having ruled that Estonia’s interference with Delfi’s article 10 right to freedom of expression was “prescribed by law” the essential question before the European Court of Human Rights was whether the interference was proportionate.

In finding that it was, the Court assessed four key issues: First, the context of the posts. The comments were insulting, threatening and defamatory. Given the nature of the article, Delfi should have expected offensive posts and exercised an extra degree of caution. Second, the steps taken by Delfi to prevent publication of defamatory comments. The court was not impressed with Delfi’s “report an abuse” button or with its automatic word-based filter, which was easy to circumvent and had failed to prevent the publication of insults and threats. Third, whether the authors of the comments could have been made liable for them. The court accepted the argument that identifying and bringing a claim against anonymous authors was extremely difficult. Finally, the court considered the damages of EUR 320 a moderate sanction which was by no means disproportionate to the breach established by the domestic courts.

Comment

The decision is surprising and not final – it may yet be referred to the Grand Chamber of the European Court for consideration by a panel of 5 judges. We will monitor and keep you updated.

It seems unlikely that a court in this jurisdiction would make a similar ruling. Many of the comments were described as vulgar, insulting and offensive –  comments which here could be dismissed as “mere vulgar abuse” and not defamatory (Smith v ADVFN & Others [2008] All ER (D) 335 (Jul)).

The offending reader comments remained on the website  for 6 weeks while the shipping company’s owner instructed solicitors. It is not clear why no earlier use was made by the shipping company of the “report an abuse” buttons and they do not appear to have been criticised for it.

The court was persuaded by the argument that it was very difficult for an injured party to have recourse against the authors. In the UK, the Norwich Pharmacal regime provides for a relatively straightforward way of identifying anonymous users and Section 5 of the new Defamation Act 2013 will help transfer liability from host websites to authors.

Nevertheless, a note of caution is the Estonian court’s ruling that the website was not merely a “host” for the purposes of article 14 of the Directive because 1) Delfi invited readers to comment on the article; 2) Delfi profited from advertising revenue the more comments were posted; 3) the authors themselves were unable to alter or delete their comments once submitted; and 4) Delfi admitted monitoring comments of its own initiative in the past.

Websites which post articles inviting reader comments are advised to ensure that readers are able to delete or amend their own comments following submission and to stick to a strict “reactive moderation policy” to avoid blurring the boundary between their provision of content, as far as the articles are concerned and a service, in respect of reader comments.

The European Court of Human Right’s judgment can be read here