News websites – take care with comments, ECHR ruling

NEWS website operators need to take care, following a judgement in the European Court of Human Rights.

This was the final appeal by an Estonian news site called Delfi, which took the case to the ECHR after it was found liable for third-party comments placed upon its site. The appeal claimed Estonia had failed to protect its Article 10 rights to freedom of expression by allowing such liability. The judgement can be read here – http://t.co/D1IPjE3Ltp

The case arose after the site carried reports of ice roads to islands off the coast of Estonia being damaged by the activities of a ferry operator. Some of the comments below the story from readers were aimed at the ferry company directors and amounted to libel and hate speech.

The Estonian courts held Delfi liable for the comments because of its failure to promptly remove these comments when notified of them.

The European Court of Human Rights rejected the appeal. It said Delfi by running the story had invited the comments and, knowing this was a controversial issue, ought to have been quicker to act when notified of a problem.

The implications for UK news sites do not immediately seem apparent. It is already well-established practice here that where comments are unmoderated, liability only occurs where a publisher fails to remove material once they have been notified of it.

Most news sites operate post-moderation and remove comments or other material that is flagged up to them.

However, what the Delfi judgement does suggest is that sites need to be prompt to remove. This could have a chilling effect on sites in receipt of a complaint where there is some dispute about the meaning of the comments.

Many websites already, understandably, err on the side of caution and take down material upon complaint. This judgement only reinforces that policy and inevitably this will lead to material that is not actually legally actionable being removed. Determined claimants will, once again, be able to stifle legitimate publication by way of legal threats.

I also think Google, Twitter and Facebook should keep an eye on judgements like this. The Delfi judgement says that it does not apply to social media. If I were in their management, I would still be concerned about the ‘direction of travel’ of the European judges.

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