A Victory for the Culture of the Offended

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.

20 thoughts on “A Victory for the Culture of the Offended

  1. There is one important point here that seems to be overlooked. The court finds that the news site did not remove the comments without delay. Therefore, it is still possible to keep a comments section without becoming liable for “illegal expression”.

    • so the site’s failure to act immediately, or with the timeliness that the EUHRC would deem acceptable constituted tacit approval of the comments, thus leaving the site exposed to charges of pandering hate speech. I don’t see where timeliness or ‘without delay’ are defined. Thus, in ipso situ, the court has outlawed commentary that it views to be objectionable as both timeliness in response and objectionable in content were net defined beyond vague and inclusive parameters.

        • The question of how and who and which UN accepted version of “human rights” are used to determine violations. The Universal Declaration of Human Rights as understood by the “free West” or the shariah compliant “Cairo Declaration of Human Rights” which the OIC nations would have superimposed upon the globe (see Stephen Coughlin’s Red Pill Briefs here)?

          • The Cairo – Sharia – Declaration
            Article 10

            “Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” wiki

            So, that should mean: Anything that does not praise islam, then, is forbidden to say, because it could give mohammedans the idea that something might be wrong with islam, and “force” him to convert or become an atheist.

          • Reply, do you have a link to the Cairo Declaration? I’d love to bookmark it. I had a link to the EU Constitution on my old computer but failed to pull it off when I moved.

            The lead sentence in Article 10, Islam is the religion of unspoiled nature would be hilarious if it weren’t so pathologically twisted. Rousseau must be twisting in his grave.

            The second sentence is a howler, but think of all the money Muslims save on shrink bills.

  2. Lots of fun, and earnings, to be had for lawyers all over Europe… the biggest winners of this crackdown on hate speech?

    As for plaintiffs themselves posting “hateful” comments which are not immediately deleted, I believe that’s already happened – one Richard Warman in Canada comes to mind…

  3. Anybody out there in electron-land still think that there is some kind of peaceful, within-the-law solution here?

    Me neither.

  4. The thin end of a terrible wedge that ultimately seeks to destroy the communications freedom that the Internet has provided. Make it incumbent upon the website’s administrator to remove “without delay”:

    “comments amounting to hate speech and speech inciting violence”

    Problematic in a multitude of ways. What constitutes “without delay”? Two hours? 15 minutes? Is the website administrator meant to have someone monitoring the comments section 24/7?

    And even if they did the notion of something “amounting to hate speech” or “speech inciting violence” is hugely elastic. And can be stretched as far as anyone likes. Mark Steyn’s writings examined for quasi-criminality in an epic kangaroo- court case were deemed racist or offensive to Muslims because of their “tone”! Tone eh?

    Someone above mentioned Richard Warman, a Canadian “human rights” bureaucrat who used to post as a sock puppet on targeted blogs, bring the post to the attention of his superiors and then have his Human Rights Commission prosecute the website administrator for publishing hate speech. Successfully, on several occasions.

    One can just see legions of Muslim welfare scroungers sitting round all day long scrutinizing targeted websites for anything potentially useful and/or getting sock puppets to post offensive comments then clamouring for policing “Human Rights Commissions” or whatever to take punitive action.

    This UNHRC ruling is clearly aimed to bring about self-censorship. This website could never, in Europe, safely publish the 2008 (!) essay by El Ingles “The Danish Civil War” as it would be contended, especially the author’s commentary following the essay, to be inciting violence. The next step will be blocking European access to American sites that have the protection of the 1st Amendment. One can see that the Internet as we know it will be dead in Europe within a few short years.

  5. There is NO such thing as hate speech. This is a product of the people trying to control us. There is FREE SPEECH and here in America, everyone has a right to it, even there are some people trying to trample on it.

    Everyone has a right to say what they think, no matter how offensive it might be. This is the price of freedom.

    Every [epithet] in the world has a right to say what they think. What the hell, is this so hard to understand?

  6. Free speech in the EUSSR is a myth. Article 10 of the EU’s universal declaration of human rights has parts 1 and 2. The first part says you have the right to free expression and the second part all but takes it away, stating that our freedom of expression is subject to certain conditions and restrictions in the interests of national security, territorial integrity, or public safety, for the protection of health or morals (some body somewhere will decide what shall be moral and insultingly assume that only they are in possession of a moral compass), etc etc. there are many conditions on free speech here. Unlike America’s First Amendment, the EU Court has decided to make laws that infringe upon the very rights they claim to hand out. At least this is my take on it.

  7. Yet another nail in the much-deserved coffin for the EU.

    I sincerely hope the Grexit and the (hopefully) Britexit burns it down, root and branch.

    The sooner the better.

  8. Wonderful in a way. My decision to live as a compulsive scoff-law has again been vindicated.

    While I cherish my entitlement to utterances that make people squirm, the real goal is to make them mortally apoplectic. That’s power.

  9. Thank God my parents had the guts and courage to move to America. Otherwise I’d be dead now in the “old country” where freedom of speech is somewhat unknown.

  10. Islamists are free to incite to terror. That is not “hate speech”.
    Critizising the islamists is illegal, because it is “hate speech”.

    Very easy to understand, once you understand the final goal of Eurabia. The Endlösung, to shut down the modern world, and bring succesful peoples to an end, winning over the Christian world, seen from the other side. First Constantinople, then Rome – the Western part of the Christian world.

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