EU Court Rules that Website is Liable for Anonymous Comments

Originally published by Peter S. Vogel.

In spite of the fact that Estonian news site Delfi  took down anonymous offensive and “allegedly defamatory” comments from its readers, the European Court of Human Rights (ECHR) in Strasbourg ruled that Delfi was liable for those comments.  The June 16, 2015 ruling included the following:

11. In our view, member States may hold a news portal, such as Delfi, liable for clearly unlawful comments such as insults, threats and hate speech by readers of its articles if the portal knew, or ought to have known, that such comments would be or had been published on the portal. Furthermore, member States may hold a news portal liable in such situations if it fails to act promptly when made aware of such comments published on the portal.

The actual story in January 2006 was about a controversial plan for a shipping company to destroy public ice roads by “L” who was a supervisory board member of the shipping company. L’s story led to 185 comments posted including about 20 comments which “contained personal threats and offensive language directed against L,” and were removed under Delfi’s Rules:

Delfi prohibits comments whose content does not comply with good practice.

These are comments that:

–  contain threats;

–  contain insults;

–  incite hostility and violence;

–  incite illegal activities …

–  contain off-topic links, spam or advertisements;

–  are without substance and/or off-topic;

–  contain obscene expressions and vulgarities …

There was an interesting dissenting opinion:

In this judgment the Court has approved a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content). We find the potential consequences of this standard troubling. The consequences are easy to foresee. For the sake of preventing defamation of all kinds, and perhaps all “illegal” activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst.

This is a very controversial ruling which may impact free speech through the EU.

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