Strasbourg decision: news site liable for comments

Strasbourg – In the Delfi AS v. Estonia case, the European Court of Human Rights held that there had been no violation of Article 10 of the European Convention on Human Rights. The decision is not final.

The case (application nr. 64569/09) concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. The portal complained that being held liable for the comments of its readers breached its right to freedom of expression – says the press release of the Court.

The Court held that the finding of liability by Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts was not excessive.

Of particular interest was the Court’s finding on the issue of the lawfulness of the interference with the portal’s right to freedom of expression. Though the portal had argued that an EU Directive on Electronic Commerce, as transposed into Estonian law, had made it exempt from liability, the Court found that it was for national courts to resolve issues of interpretation of domestic law, and therefore did not address the issue under EU law.

Padraig Reidy of Index on Censorship has explained that the ruling – which might have a serious affect on comments – concerns a case against Estonian site Delfi.ee. In 2006, Delfi ran a story about a ferry operator’s changing of routes. This story lead to some heated debate in the comments thread, with, according to the judgment “highly offensive or threatening posts about the ferry operator and its owner.” The anonymous comments were not taken down by the automated system of Delfi, nor by its notice-and-take-down system. Reidy has added that the judgment in the case Delfi AS v Estonia suggests that online portals are fully responsible for comments posted under stories, in apparent contradiction of the principle that portals are “mere conduits” for comment and cannot be held liable. Further, the unanimous ruling suggests that if a commercial site allows anonymous comments, it is both “practical” and “reasonable” to hold the site responsible for content of the comments. Reidy has highlighted that “it is difficult to see how any site would allow anonymous comments if this ruling stands as precedent.”

Source: European Court of Human Rights, Index on Censorship.

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