ECtHR: websites responsible for users' comments

Grolschevik

Court rules that websites are responsible for users' comments
http://news.eircom.net/breakingnews/21399115/?view=Standard
on 10/10/2013 10:44:54

The European Court of Human Rights has ruled that websites are legally responsible for the comments posted by their users.

The court in Strasbourg has thrown out an appeal by an Estonian website which had been sued over comments posted by readers underneath an article.

The website unsuccessfully argued that its rights of free expression were being breached.

However the court said the individual users who posted the comments could also be sued - as long as it was possible to identify them.

Should certainly have implications for the comments section of newspapers. Does it imply that pre-moderation would be necessary?

Cody Pomeray

Some health warnings

1. The decision is not final; these decisions do get overturned from time to time.
2. The domestic courts found that the provisions of the e-commerce directive, as transposed into Estonian law, did not apply because the website did control the comments
3. The ECtHR did not consider the substantive relevance of the e-commerce directive in itself, however this was the finding of the Estonian Supreme Court as summarized by the ECtHR

24. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It emphasised that the applicant company had not been required to exercise preliminary control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments from the portal. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims.
25. The Court of Appeal rejected the applicant company’s argument that its responsibility was excluded on the basis of the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to add comments. Thus, the applicant company was a provider of content services rather than of technical services.
26. On 10 June 2009 the Supreme Court dismissed the applicant company’s appeal. It upheld the Court of Appeal’s judgment in substance, but partly modified its reasoning.
27. The Supreme Court approved the lower courts’ interpretation of the Information Society Services Act, and reiterated that an information society service provider, falling under that Act and the Directive on Electronic Commerce, had neither knowledge of nor control over information which was transmitted or stored. By contrast, a provider of content services governed the content of information that was being stored. In the present case, the applicant company had integrated the comment environment into its news portal and invited users to post comments. The number of comments had an effect on the number of visits to the portal and on the applicant company’s revenue from advertisements published on the portal. Thus, the applicant company had an economic interest in the comments. The fact that the applicant company did not write the comments itself did not imply that it had no control over the comment environment. It enacted the rules of comment and removed comments if the rules were breached. The users, on the contrary, could not change or delete the comments they had posted; they could merely report obscene comments. Thus, the applicant company could determine which comments were published and which not. The fact that it made no use of this possibility did not mean that it had no control over the publishing of the comments.
28. Furthermore, the Supreme Court considered that in the present case both the applicant company and the authors of the comments were to be considered publishers of the comments. In this context, it also referred to the economic interest of an internet portal’s administrator, which made it a publisher as entrepreneur, similarly to a publisher of printed media. The Supreme Court found that the plaintiff was free to choose against whom to bring the suit, and L. had chosen to bring the suit against the applicant company.
29. The Supreme Court found that on the basis of its legal obligation to avoid causing damage to other persons the applicant company should have prevented clearly unlawful comments from being published. Furthermore, after the comments had been published, it had failed to remove them on its own initiative, although it must have been aware of their unlawfulness. The courts had rightly found that the applicant company’s failure to act had been unlawful.

full judgement is here
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-126635#{"itemid":["001-126635"]}

this comes at a very relevant time for boards.ie!

Although it has limited relevance to the E-commerce directive.

hullaballoo

Cody's link is broken, so I have attached the PDF.

It is an interesting decision. It relies heavily on national laws and the MS's interpretation of the eCommerce Dir in relation to 'mere conduit' etc.

There are a number of distinctions between Irish law and the Estonian laws on defamation. The Estonians also seem to have an approach that makes certain steps obligatory on persons when dealing with unlawful acts. We do not have the same, extensive obligations here.

Further, there is a focus by the ECtHR on the "professional" status of the website, as well as the reputation that the comments section had for its vitriol, which seems to imply that there is a greater onus on a website where their comments section is "known to be" particularly nasty. Youtube springs to mind.

One of the other outstanding differences is that the comments were mostly just vulgarities. I suspect that even with the (relatively) new definition for defamation here, that has to be read on the background of the pre-existing law and vulgar abuse may not be deemed to be defamatory.

chops018

I agree with Hullaballoo, the ECtHR will use the Margin of Appreciation doctrine in their decisions, and ultimately what could be decided for Estonia, could be decided very differently for Ireland.

Bepolite

You're all drunkards and blagards!

(Then again truth is a complete defence! :P)