Free speech activists were dismayed after the European Court of Human Rights said that the Estonian justice system was right to fine a news website for user-generated hate comments under an article. The decision is feared to have wide repercussions.
“Despite warnings from groups defending vulnerable internet
users, as well as from large media companies, the court has
dramatically shifted the internet away from the free expression
and privacy protections that created the internet as we know
it,” said Peter Micek, the senior policy counsel of Access,
an online human rights group.
Delfi AS v. Estonia: a blow to free expression online — our
detailed analysis https://t.co/Mm65bn5cPE pic.twitter.com/3hZOyTodG2
— Access (@accessnow) June
16, 2015
The nine-year case started over a seemingly trivial article,
about an Estonian ferry company that destroyed ice roads when it
opened new routes. It was published in January 2006 on the
country’s leading Delfi.ee news portal. The piece attracted over
20 particularly rude comments targeting the owner of the company,
calling him “scum” and a “bastard,” and issuing
threats against him.
The owner, Vjatšeslav Leedo, spotted the comments six weeks after
the article went up, and immediately complained to Delfi, which
deleted them within a day. However, Leedo went further, and sued
Delfi for defamation.
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While the disgruntled shipping company owner won nominal damages
of 5,000 kroon (320 euros) – one-hundredth what his lawyers
wanted – the case started a legal saga referred to as Delfi AS v.
Estonia. It has seen the outraged news portal go through every
court until it reached the Grand Chamber of the ECHR, comprising
17 senior judges from around the continent.
But on June 16, the ECHR upheld the original court decision,
claiming that the comments were “manifestly unlawful”
and constituted “hate speech,” also noting 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.”
This was despite the judges’ conclusion that the Delfi’s article
itself “was a balanced one, contained no offensive language
and gave rise to no arguments about unlawful statements.”
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The decision to place the onus for the comments on Delfi goes
against the European Union’s own e-commerce directive, which
limits the liability of the content intermediary – in this case,
the news portal. The potential unintended consequences were
already spotted by two of the judges, who wrote a dissenting
opinion.
“For the sake of preventing defamation of all kinds, and
perhaps all “illegal” activities, all comments will have to be
monitored from the moment they are posted. As a consequence,
active intermediaries and blog operators will have considerable
incentives to discontinue offering a comments feature, and the
fear of liability may lead to additional self-censorship by
operators. This is an invitation to self-censorship at its
worst,” said the opinion.
Meanwhile, online free speech advocates have been outright “shocked” by the decision,
which “dashed hopes” that the court would uphold the freedom of expression that clashes
with “protection of reputation.”
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Professor Lorna Woods, of the London School of Economics, also
said it was “worrying” that one of the ways suggested
around the problem by the judges was removing anonymous comments,
meaning the legal responsibility would shifted onto only verified
users. Woods also pointed out that constant moderation by
websites would be no different to pre-moderation, in practice. In
an interview with Ars Techica, T J McIntyre, chairman of Digital
Rights Ireland, warned that the definition of “manifestly
unlawful” was broad and unsupported by evidence, creating
even more potential confusion among online media portals.
#Delfi
ECHR judgment: sad news for free speech anonymity. And +
fragmentation of cyberspace, I submit: http://t.co/ARiEqNLmAz
— Nicolo Zingales (@TechJust) June
16, 2015
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
“Today’s decision doesn’t have any direct legal effect. It
simply finds that Estonia’s laws on site liability aren’t
incompatible with the ECHR. It doesn’t directly require any
change in national or EU law. Indirectly, however, it may be
influential in further development of the law in a way which
undermines freedom of expression. As a decision of the Grand
Chamber of the ECHR it will be given weight by other courts and
by legislative bodies,” McIntyre said.
Europe’s crackdown on free speech continues as Lithuania bans
TV station for not following government line http://t.co/T695L3xwyD
— Richard Wellings (@RichardWellings)
January 16, 2015
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