+Comment Fining a news website for offensive article comments posted by its readers is not a violation of the freedom of expression, the European Court of Human Rights ruled on Tuesday.
Delfi, one of the largest news websites in Estonia, had argued that the authorities were wrong to hold it accountable for rather rude user-submitted comments in a case that was all about the principle: it was fined the princely sum of €320 (£230, US$360). Nonetheless, Delfi took it all the way to the ECHR.
But the Grand Chamber decided, by 15 votes to two, that the Estonian court had been within its rights to find against the website.
The ruling [HTML, PDF] may have wide-ranging implications for some European publishers; however, the court was keen to underline that the decision does not necessarily apply to all online fora – for example, internet discussion forums, a bulletin boards, and social networks are not the target. The ruling is supposed to apply to big publishers with lawyers and loads of money from ad impressions.
In January 2006, Delfi published an article about a ferry company called SLK, which had changed its routes and thus delayed the building of ice roads. The ice roads would have been a cheaper, faster means of travel than the ferries, and the article earned angry posts from readers: specifically, offensive and threatening posts about the ferry operator and its owner.
Lawyers for the ferry company asked Delfi to remove the comments, but it took the online publisher six weeks to do so. In June 2008, an Estonian court found that the comments were defamatory, and that Delfi was responsible for them. The comments were uploaded automatically, and were, as such, not edited or moderated by Delfi. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms. Delfi did have some automated word filters to bin nasty comments, but these were not triggered by the comment posters.
Online versus offline media
An appeal by Delfi to the Estonian Supreme Court was also rejected – although that court did recognize the difference between online and printed media, and accepted that the former could not reasonably be required to edit comments before publishing them in the same manner as the latter. But as a news portal run on a commercial basis, Delfi was still deemed responsible.
The Grand Chamber found that the Estonian courts’ finding of liability against Delfi had been justified in part because of the delay in removing the posts that the chamber said were tantamount to hate speech. Other elements noted by the court were the anonymous nature of the comments, and the fact that Delfi profited from their continued publication.
According to a statement from the ECHR: “As this was the first case in which the court had been called upon to examine such a complaint in an evolving field of technological innovation, it decided to narrow the scope of its inquiry both as concerned the nature of the applicant company as well as of the speech in question.”
The court emphasized that Delfi was one of the biggest professionally managed internet news portals in Estonia, and that the paltry fine had not been excessive.
At first, this may look like a sky-is-falling decision, but it changes little, at least in the UK where El Reg is headquartered: the ferry article comments were deemed to be defamatory by a court, and Delfi took six weeks to remove the offending comments. That would land any Brit publisher in hot water, regardless of this ruling.
"I don't really think the judgement in Delfi v Estonia has much impact for news sites [in the UK] which usually assume liability occurs if they fail to remove a comment," media law expert David Banks tweeted this evening.
I think sites that should really worry about Delfi v Estonia are Facebook, Twitter, Google, who are all too slow to remove, even on notice— David Banks (@DBanksy) June 16, 2015
Finally: this is all over 230 quid. Your lawyer would charge more than that to pick up the phone in a defamation case. The Estonians found themselves a bargain. ®