News portals can be liable for defamatory comments by readers
In its judgment in the case of Delfi AS v. Estonia of June 16, 2015, the Grand Chamber of the European Court of Human Rights (ECHR) confirmed that internet news portals may be liable for defamatory comments or comments that incite hatred published by their readers.
The judgment is hugely significant for the following reasons:
- It is the first case heard by the ECHR to analyze the possible breach of the freedom of expression and the right to impart information (article 10 of the European Convention on Human Rights) by internet news portals since it attributes to them the liability deriving from readers’ comments.
- The Grand Chamber upheld the judgment of the Estonian Supreme Court, which attributed liability for readers’ comments to the Delfi news portal and refused the application of the exemptions from liability established in the E-Commerce Directive (Directive 2000/31/EC) for intermediaries. The Estonian Supreme Court concluded that while Delfi had not been the writer of the comments, this did not mean that it had no control over the environment in which they were made. It held that its involvement went beyond that of a passive, purely technical service provider, meaning that it could not be classed as an intermediary.
The exemptions from liability established in the E-Commerce Directive for intermediary service providers mean that they will only be liable for content hosted by third parties when, having had actual knowledge of the illegal content, they do not act expeditiously to remove or to disable access to it. For actual knowledge to exist, there must be an order by a competent authority declaring the illegal nature of the content or a notification by the holder of the rights where the content is patently illegal, provided that the infringing content is correctly identified. Otherwise a general obligation to monitor content would be imposed on intermediaries, which is prohibited under article 15 of the Directive.
- The practical consequence is that it attributes culpa in vigilando (fault in monitoring) to the news portals. In other words, news portals can be liable for readers’ comments even if they have not received a prior request for removal.
- The fact that Delfi had a notice-and-take-down system, as well as a system for automatic deletion of defamatory or obscene comments, did not exempt it from liability. Neither did the fact that the portal’s comments policy expressly stated that it did not moderate or edit comments and that authors of comments were the sole parties liable for such comments.
- A significant factor in the ECHR’s ruling was the fact that Delfi allowed readers to make comments without registering their names and that measures to determine their identity were not certain to be effective. Neither had Delfi established any mechanism to identify the authors of comments that would enable potential victims of hate speech to bring a claim. Moreover, the actual writers of comments could not modify or delete them once they had been posted: only Delfi had the technical means to do so. The Court also took into consideration the fact that the readers’ comments were seriously offensive and posted in reaction to an article published by Delfi.
Internet news portals should exercise particular care with respect to the comments published by their readers, since that may be held directly liable for them.
Measures adopted by some digital media outlets, such as preventing the authors of comments from removing or modifying them, or allowing readers to make comments without registering their names, may have adverse legal consequences.
The ECHR has stated that this case does not apply to other internet forums, such as social networks; however, its conclusions could be extrapolated to online newspapers.
You can find more information on information law on our website.
Garrigues Telecommunications & Media Department