ECHR ruling suggests publishers liable for defamatory web comments as soon as they appear

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Online news providers could be liable for unlawful user comments on their message boards, following a surprising decision by the European Court of Human Rights last week.

The decision means that web editors could be forced to remove defamatory comments as soon as they appear, rather than wait for 'take-down' requests as they do now.

The ECHR made the ruling in a case involving the large Estonian news site, Delphi. The decision contradicts the EU's Electronic Ecommerce Directive, which gives online publishers immunity for illegal comments made by users on message boards.

The ECHR judges said that it was reasonable and practical for a website owner who allowed anonymous comments to be held responsible for them.

Some experts believe that the ruling could lead to a shift in online publishing law and see it as a blow to free speech.

The issue goes back to January 2006, when Delphi published a story about  a ferry company's controversial decision to change its routes.

The article attracted more than 180 comments, including 20 that contained threats and abuse directed at the ferry company's majority shareholder. The comments bypassed Delphi's automatic 'bad language' filtering system.

The ferry company sued for libel and won its case under Estonian libel law, even though Delphi removed the comments quickly after receiving a complaint.

Delfi then lost its appeal in the Estonian courts, and took the case to the European Court of Human Rights. It has taken several years to grind its way up to the Grand Chamber.

The chamber rejected Delphi's claim that the libel ruling breached its rights of freedom of expression. It gave greater weight to the reputation rights of the ferry company's majority shareholder, and fined them 320 Euros. 

The judges rule that the comments amounted to hate speech, and said: "By publishing the article in question, [Delphi] could have realised that it might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech."

The court also noted that Delphi benefited commercially from having active message boards.

It now remains to be seen what effect the ruling will have on UK sites. They are currently protected by the Defamation Acts 1996 and 2013, and the EED, which all allow them to claim immunity for defamatory and other illegal reader comments, provided they do not moderate them and respond quickly to take-down requests.

To comply with the ECHR's ruling, web editors would have to check comments once they were published, and remove them if they believed they breached the law, rather than wait for a complaint.

However, it should be remembered that the ruling was made by the European Court of Human Rights – not the European Court of Justice. It was a judgment about the freedom of expression, not the EED.

This means it only provides case law for other countries to use in similar cases, and does not set a European precedent under the EED.

UK courts are not legally bound by ECHR decisions – they only have to 'take them into account'. However, they generally attempt to make judgements that are compatible with the convention.

The problem for web editors, though, is that if they continue to stick to the EED, they are now more vulnerable to a claim that a message breached someone's human rights.

The only good news is that the damages are cheap. But the legal bill might not be.

 

Cleland Thom is a consultant and trainer in media law

 

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