Legal expert David Banks has warned that a European Court of Human Rights ruling this month could force journalists to close comment threads on their blogs or pre-moderate them to avoid legal action when dealing with particularly contentious stories.
Speaking on the Media Show on Radio 4, Banks was commenting on a case involving a news website and an Estonian ferry company.
The judges ruled that a “notice and take-down” system on a comment threat was not sufficient and warned against allowing anonymous postings because you cannot shift liability to the poster.
The case involved Delfi, one of Estonia’s largest internet news portals that publishes more than 300 news stories a day receiving more than 10,000 comments a day.
It published a story about a ferry company changing the route of one of its vessels to break up an ice road used as a cheap method for people to drive to offshore islands.
With the ice roads broken, motorists were then forced to use the ferry company’s services to travel between the island and the mainland – the site reported.
Many posters on the Delfi website were outraged and some made threatening and defamatory comments against the company.
According to the ECHR the original story on Delfi was fair and offered the right of reply to the ferry company. The internet company also acknowledged that posts on the comment section were defamatory and removed them immediately when contacted by the ferry company.
The ferry company won a case in Estonia that the internet company was liable for the comments made by posters, many of whom were anonymous.
Delfi disputed this and appealed the case to the ECHR claiming that its right to freedom of expression had been infringed.
The ECHR ruled: “Nevertheless, the article dealt with the shipping company’s activities that negatively affected a large number of people. Therefore, the Court considers that the applicant company, by publishing the article in question, 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.
“It also appears that the number of comments posted on the article in question was above average and indicated a great deal of interest in the matter among the readers and those who posted their comments. Thus, the Court concludes that the applicant company was expected to exercise a degree of caution in the circumstances of the present case in order to avoid being held liable for an infringement of other persons’ reputations.”
The ECHR accepted that Delfi had a filter that automatically deleted posts containing vulgar words and phrases, but the court said it was relatively easy to avoid this mechanism.
It said Delfi had not done enough to prevent adverse comments particularly when it was obvious that such a story would create a critical response among those who were affected by the change.
Banks told the Media Show: “The court said three sort of very worrying things. First of all that the notice and take down system at the Estonian website Delfi was not sufficient. Delphi took down material as soon as they were notified of it.
“That is very concerning for all of us who use notice and takedown. Secondly they said that you have to take greater care if you allow anonymous postings on your site because you are unable to shift the liability on to the poster.
“The third thing, which is really concerning for those who use these websites, is you ought to be able to predict when defamatory comments will be placed on your site after a story.
“They said the site was held responsible because they had not put these procedures in place and because they failed in these ways. The European Court said it was not disproportionate for the Estonian courts to hold them liable for that.
“That is very worrying line of thought for any senior judicial thinkers to take in the European Union.
“I think it is very serious because you have a very senior court, the European Court of Human Rights, thinking in that way. We rely on the European Court of Justice, a separate court to give us the defence [of notification and take-down]. But if you have senior judges thinking in this way it is persuasive in other courts and legislators.
“If you think a website is like a traditional publisher then fair enough, but they are not. If you look at the sheer volume of material that goes up on websites daily, hourly and by the minute, you appreciate the sheer scale of what you are asking of these sites.
“I hope it won’t get applied here and the decision gets appealed to the Grand Chamber of the European Court of Human Rights and they overturn it."
The Defamation Act, which is to come into force before the end of this year, introduces a new system which protects publishers from publishing libellous user comments provided they follow a set procedure once a complaint has been made.
Libellous anonymous comments will normally have to be taken down if the publisher wants to avoid a potential libel action.