European court kills web comments

European Court of Human Rights The European Court of Human Rights (ECHR) in Strasbourg has ruled that an Estonian news site Delfi may be held responsible for anonymous and defamatory comments from its readers.

The ruling, which goes against the European Union’s e-commerce directive, which “guarantees liability protection for intermediaries that implement notice-and-takedown mechanisms on third-party comments.”

A post from the Media Legal Defence Initiative summarises said the court came to this unexpected decision because of the “the ‘extreme’ nature of the comments which the court considered to amount to hate speech.

The fact that they were published on a professionally-run and commercial news website,” as well as the “insufficient measures taken by Delfi to weed out the comments in question and the low likelihood of a prosecution of the users who posted the comments.”

As a result the legal situation is now complicated and some analysts think it only really effects Estonia’s laws on site liability.

But what it might do is encourage the idea that intermediaries are liable for “manifestly unlawful” content, without specifying what “manifestly unlawful” actually means. So websites will either kill comments or be over cautious in taking down material which might possibly be contentious.”

It is good news for Big Content too. The judgment upholds a finding that “proactive monitoring” of Internet users can be required. This would force Internet web sites to filter content something that the movie studios have wanted and has been ruled illegal by the Court of Justice of the European Union (CJEU).

Delfi would probably have won had it taken its case to the CJEU, given the e-commerce directive’s clear guidelines, but this course of action was apparently not permitted by the Estonian courts. It therefore went to the Court on Human Rights, hoping for a ruling that the Estonian law was incompatible with the European Convention on Human Rights.