ECHR judgment on liability of internet forums (Delfi AS v. Estonia)
On October 10, 2013, the European Court of Human Rights (ECHR) handed down a judgment on a matter which, while clearly not as significant as the controversial Judgment on the Parot doctrine, still raises important considerations regarding the liability of news portals for defamatory content posted by readers.
The main issue in the judgment was whether portals that host forums can be considered information society intermediary service providers, in which case they are exempt from liability under the E-Commerce Directive or whether, on the contrary, they are content providers, in which case they are under an obligation to monitor the content. The Estonian Supreme Court held that the news portal in question would be considered a publisher and, therefore, was negligent by reason of its failure to monitor the content posted on it (culpa in vigilando).
The plaintiff appealed to the ECHR on the ground that its right to freedom of expression had been violated. However, the ECHR concluded that the victims’ right of honor had been violated since the comments made went beyond the boundaries of acceptable criticism and amounted to insults and comments that incited hatred, and therefore the exemption from liability did not apply in this case.
The judgment concluded that the administrator of an internet news portal is considered a publisher and, as a result, is directly liable for the content posted by readers. In other words, for these purposes it treats internet news portals as being on a par with traditional media and imposes a duty on them to monitor content, otherwise they are negligent (culpa in vigilando).
The fact that in this case the news portal had a system for detection and removal of obscene comments did not relieve it of liability for the defamatory content posted by its readers.
Garrigues Telecommunications & Media Department