Commenters likely to be pursued in greater numbers for what they post online.
A recent ruling by the European Court of Human Rights (ECHR) has called into question the provisions of the Ecommerce Directive and the liability of media organisations for online comment. The ECHR was ruling on the case of Delfi AS v. Estonia. Delfi, a popular news and features website in the Baltic region, was challenging a ruling by the Estonian courts that the site was responsible for comments posted online by its users.
In January 2006 Delfi, published a news article about SLK, a ferry company which had announced changes to a number of its operating routes. The changes drew criticism online and of the 185 comments posted by users, 20 were deemed insulting and/or threatening in nature. Some of those comments were directed at the majority shareholder of SLK, which the court referred to simply as “L”.
Two months later, lawyers on behalf of “L” contacted Delfi and asked for a number of comments to be removed, and for damages of 50,000 kroons (approximately €32,000) to be paid. Delfi immediately took down the comments in question but refused to make any payment in damages.
Websites in Europe that facilitate online comment tend generally to describe themselves not as the publishers of this content, but as “intermediaries”. This is because an EU law known as the Ecommerce Directive offers a level of protection for European websites from liability for online content if they have no prior knowledge of the content in question.
The Ecommerce Directive sets out that an “intermediary service provider” can use a “hosting defence”. In effect, they may host and present information submitted to them by their readers and/or users, but if they have no knowledge of defamatory comments then they are not liable for them. The directive goes on to say that member states cannot oblige intermediaries to monitor comments for potential criminal or civil wrongs in advance of them being presented online.
This “hosting defence” only offers protection for a website if, upon being notified of a problem with a comment, it “acts expeditiously to remove or to disable access to the information”. The hosting defence should provide websites, such as Delfi, with immunity from civil liability; especially given that in this case the comments were removed on the same day that they were flagged by lawyers acting on behalf of “L”.
Nonetheless, “L” proceeded with legal action against the Delfi website and was unsuccessful. The county court ruled that Delfi was indeed an intermediary service provider, and was immune from liability under the hosting defence provisions of the Ecommerce Directive. This was challenged to the high court and, ultimately, an amount of 5,000 kroons was awarded – approximately €320, or 1 per cent of the original claim.
This high court ruling was appealed to the supreme court and upheld. The Estonian higher courts therefore found that the comments were defamatory and that Delfi should be considered the publisher of the comments. Delfi’s claim to be an intermediary service provider under the Ecommerce Directive had been defeated.
An appeal by Delfi to the ECHR resulted in the judgment delivered earlier this month, which saw the court broadly agreeing with the interpretation of the Estonian courts. The ECHR ruled that Delfi should have known that the published article would draw severe criticism and should therefore have acted to prevent any defamatory comments from being presented online.
David Cochrane
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