As reported last week by Intellectual Property Watch, the European Court of Human Rights has handed down a decision that permits a website owner to be held liable for “hate speech” posted in a comments section on his site, even if he eventually takes the comment down when its offensive nature is pointed out to him. The court found that Estonia did not violate Article 10 of the European Declaration of Human Rights when it took action against a news portal where such comments appeared.

The following post from Jacob Mchangama’s blog at Berlingske discusses the wider ramifications for free speech of the ECHR’s decision. Many thanks to Liberty DK for the translation, which appeared earlier at Vlad Tepes in a slightly different form:

New ruling from the Human Rights Court undermines freedom of the internet

When the Danish media have finished digesting the election, they should probably look at the new European Human Rights Court’s (ECHR) ruling Delfi v. Estonia (16/6 2015) which could potentially have far-reaching consequences for the online platforms of commercial news media. The verdict states that a popular Estonian commercial news portal is held legally responsible for its users’ (including anonymous ones) defamation, “hate speech” and (very abstract) encouragement to violence in comments and news articles. This applies even if the portal removed said comments upon legal request, and even if on the comments page there was a notice-and-take-down system where offensive comments could be reported, just as comments that contain coarse and vulgar words would automatically be caught by a spam filter. The internet portal even had guidelines prohibiting certain forms of offensive comments. ECHR stated in Section 110 which principles are at stake and which considerations that must be weighed in:

The Court notes at the outset that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression… However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated as never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. Bearing in mind the need to protect the values underlying the Convention, and considering that the rights under Article 10 and 8 of the Convention deserve equal respect, a balance must be struck that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that liability for defamatory or other types of unlawful speech must, in principle, be retained and constitute an effective remedy for violations of individual rights.

In paragraph 115 the ECHR furthermore restricted the verdict’s reach in relation to other non-commercial actors:

Consequently, the Court considers that the case concerns the “duties and responsibilities” of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users — whether identified or anonymous — engage in clearly unlawful speech, which infringes the individual rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them.

The ECHR, at the same time stated that the case does not touch other platforms such as social media, private blogs, etc. In paragraph 162 of the ruling the ECHR summarizes its assessment and concludes:

Based on the concrete assessment of the above aspects, taking into account the reasoning of the Supreme Court in the present case, in particular the extreme nature of the comments in question, the fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction imposed on the applicant company, the Court finds that the domestic courts’ imposition of liability on the applicant company was based on relevant and sufficient grounds, with regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company’s right to freedom of expression.

It should be noted that in this regard — with respect to the lack of knowledge of Estonian society — that it does not seem clear that all of the comments in question were in fact “clearly unlawful comments” and also that the assessment of these as containing “incitement to violence” seems based on a very low threshold of proof. Here are some examples of the comments mentioned in the judgment:

“11. and can’t anyone defy these s***s?”, 16. “bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!”, 15. “this [V.] will one day get hit with a cake by me. damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there — thinking that … a pig is going to be slaughtered. no way”.

It might not be courtly speech, but neither is it exactly “Der Stürmer”, and it is regrettable that the ECHR didn’t even judge the individual comments but found that they all in some way are considered a form of “hate speech”.

It is a highly unfortunate ruling for freedom of the press, and a victory for the culture of “the offended”, whose champions now can start hunting for comments on all sorts of commercial websites and (depending on national law) hope to have the relevant media prosecuted. Yes, in a not entirely unthinkable scenario, the unscrupulous could even, anonymously, post offensive comments about themselves or their business on a news site and then have the owner prosecuted if it was not removed immediately. Of course it is OK to stand legally accountable for one’s own comments, and there are also plenty of examples of ordinary people being convicted for online comments that have been in violation of various criminal provisions. It is also clear that it is not a freedom of speech issue when media on its own initiative seeks to moderate the debate by removing content which is considered to be substandard, illegal, etc. But when online media run the risk of being held legally responsible for offensive comments, we run the risk of undermining freedom of the press.

The judges Sajo and Tsotsoria voted against the majority (while the Danish judge JF Kjølbro wrote a concurring opinion and voted with the majority) and have written a long and persuasive dissenting opinion which is worth quoting from:

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.

The potential consequences for Danish law require a more thorough analysis. As to whether this ruling could be used to, for example, have the tabloid newspaper “Ekstra Bladet” sentenced for libel as a result of comments, I dare not predict. But if I were Poul Madsen, I would probably sit a little more uneasily in my chair. That said, even if the current Danish legal position is not affected by the ruling it does open up the possibility that politically it would be possible to adopt new legislation that would hold the media accountable for their users’ feedback. As such this ruling, mutatis mutandis, pulls in the opposite direction of the Jersild judgement whereby DR was successful in receiving acknowledgement by the ECHR that one could not be judged merely by conveying racist utterances others had made.

The natural consequence of this decision is, as highlighted in the dissenting opinion, that news portals either completely drop their comments section or create a comprehensive “censorship” system that eliminates feedback, thereby undermining one of the web’s major advantages, namely that ordinary people directly and immediately have the opportunity to express their views without filter or editing. This system means of course that there are buckets of dirt on the Internet. But the value of democratic debate regarding comments far exceeds the negative impact of trolls and the many digital cave people out there. In a global perspective this ruling is also unfortunate. Because if news media and not users are held accountable for the content of the latter’s comments, it may be used to pursue the media in authoritarian countries where the punishment will often be much harsher than just a minor fine.