European news site held liable for hateful comments, prompting free-speech concerns

The ruling involving an Estonian news site has prompted concern that it undermines EU rules protecting online intermediaries

A court ruling that holds an Estonian news portal liable for hate speech in comments on its website has triggered fears for the future of online news startups.

The news portal had argued, unsuccessfully, that requiring it to censor or moderate reader comments violated rights to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights.

The European Court of Human Rights, in a ruling Tuesday, found no such violation. But two judges who issued a dissenting opinion warned that making the portal monitor each and every comment before publication could result in "a disproportionate interference" with the news portal's freedom of expression.

The ruling is significant for media organizations and could affect how news sites deal with reader comments. It pits laws on freedom of expression against the European Union's E-Commerce Directive, which is usually seen as providing a way for websites to avoid liability for user-generated content, as long as they agree to respond promptly to requests to remove illegal material.

The Computer and Communications Industry Association, whose members include Facebook, Google and Yahoo, warned that the judgment confused the legal protections intermediaries can rely on, limiting use of user content and discouraging investment in new online services.

The court emphasized that its judgment should apply only to professional news sites that invite comments on their stories, and not to other online forums such as discussion boards, bulletin boards and social media sites.

The Estonian case began in 2006, when news portal Delfi published an article about a ferry company's decision to change its route to certain islands, breaking ice where it would have been possible for ice roads to open. This delayed for several weeks the opening of the ice roads, which provide cheaper, faster connections to the islands than the ferry service.

In the comment section under the article, readers responded with offensive and threatening posts about the ferry operator and its owner, the court said. About six weeks after publication, the ferry company's lawyers requested that the comments be removed, and Delfi promptly complied, refusing a request for 500,000 Estonian kroons (then about US$38,000) in damages.

The ferry company took its complaint to court, where a judge initially found that, under Estonia's implementation of the E-Commerce Directive, Delfi had no liability for comments on its site.

The ferry company appealed, and was awarded 5,000 kroons in damages as the case traveled up through the Estonian court system until in 2009 the Estonian Supreme court held Delfi liable, rejecting its argument that it was neutral and merely a technical service provider. The portal had not only failed to prevent publication of the comments but also failed to remove the comments on its own initiative, the court found.

Having failed to make its argument that it was a mere conduit deserving protection under the E-Commerce Directive, Delfi changed tack and took its case not to the Court of Justice of the European Union, but to the European Court of Human Rights, which accepts cases from 47 signatory states of the European Convention on Human Rights. There it argued that the judgment of the Estonian courts violates the convention's Article 10, which covers freedom of expression.

The court initially rejected Delfi's arguments in 2013, but the company again appealed. In Tuesday's ruling the court's Grand Chamber upheld the earlier decision against Delfi.

Delfi's editor in chief, Urmo Soonvald, said in an article on Delfi's portal that freedom of speech in Europe has been badly hit.

While the judges attempted to finesse a distinction between requiring that the portal only take down manifestly illegal content of its own initiative, and requiring it to review user generated content prior to publication, Lorna Woods, a professor of Internet law at the University of Essex in the U.K., was dismissive of this argument. "Both effectively require monitoring (or an uncanny ability to predict when hate speech will be posted)," she wrote on the blog of the London School of Economics Media Policy Project.

"Both approaches implicitly reject notice and take down systems, which are used -- possibly as a result of the E-Commerce Directive framework -- by many sites in Europe," she wrote.

Journalist and media law consultant David Banks played down the ruling's impact on news sites, in the U.K. at least: "I think here in the U.K. the effect will be minimal. News sites here, because of the way our libel laws operate, are used to liability occurring if they fail to remove content where they have been notified of a problem."

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, online payment issues as well as EU technology policy and regulation for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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