Wednesday, June 17, 2015

ECtHR: Imposing Strict Liability for User Comments is Compatible with Freedom of Expression

Yesterday, the European Court of Human Rights delivered its Grand Chamber ruling in Delfi AS v Estonia (64569/09), a case involving an online publisher (Delfi) who was sued for third party anonymous comments on his website. 

Delfi complained to ECtHR that Estonia allegedly infringed upon its freedom of expression when Estonian courts hold it fully liable for illicit comments of unknown users, even prior to any notification about their existence. The ECtHR now confirmed that the finding of the First Section, which found no violation of the Convention, is just fine and dandy also with the Grand Chamber. According to the Grand Chamber, imposing strict liability on intermediaries such as news portal for third party comments is completely proportionate interference with their freedom of expression and does not set any wrong incentives.

There is much to be said about the decision, but maybe next time. Needles to say, I find it deeply disappointing, not only because of the outcome, but for its utterly unconvincing argumentation, selective reasoning, one sided view and complete ignorance of legitimate concerns of the third party interventions.

In the spirit of the judgement, therefore I only reproduce below those passages that I found telling.

On this basis, and having regard to the freedom to impart information as enshrined in Article 10, the Court will thus proceed on the assumption that the Supreme Court’s judgment must be understood to mean that the subsequent removal of the comments by the applicant company, without delay after publication [not notification], would have sufficed for it to escape liability under domestic law. Consequently, and taking account of the above findings (see paragraph 145) to the effect that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal, the Court does not consider that the imposition on the applicant company of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, and were thus clearly unlawful on their face, amounted, in principle, to a disproportionate interference with its freedom of expression. [§ 153]

The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments. [§ 158]

that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay [after their publication, not notification], even without notice from the alleged victim or from third parties [Yes, this means that imposing strict liability on printers for content of books also appears just fine]. [§ 159]
The Grand Chamber decided this with 15 [for] : 2 [against]. The two voices of sanity are Judge Sajó and Judge Tsotsoria. I hope that their dissent, in the test of time, will prove more convincing in shaping the debate. Just to illustrate why they disagreed with the majority:

The duty to remove offensive comments without actual knowledge of their existence and immediately after they are published means that the active intermediary has to provide supervision 24/7. For all practical purposes, this is absolute and strict liability, which is in no sense different from blanket prior restraint. No reasons are given as to why only this level of liability satisfies the protection of the relevant interests. [§ 35]

Congrats Strasbourg! I am sure that the Russian censor is already keen on testing the boundaries of the ruling.
  • More information on the case here and here.

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