By Vasudev Devadasan
The issue of whether web platforms, such as Facebook, Google or Reddit are liable for third party content posted by users and other third parties is one of the most significant issues confronting the freedom of expression in the digital era. This is especially delicate when users post content that might constitute hate speech, or involve other privacy and copyright violations. When should an intermediary be held liable for such content by its users? Most countries recognise the power of the Internet to contribute to public debate and offer various degrees of ‘safe harbour’ to intermediaries, exempting them from liability for user generated content. In the United States this is recognised by Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act which provide almost blanket immunity to intermediaries. In Europe, Article 14 and 15 of the Electronic Commerce Directive protect intermediaries operating as mere technical conduits from liability up till the point of ‘actual knowledge’ of the offence content. Under Article 14 (2) of the Directive, an intermediary is required to expeditiously take down offensive content once it is aware of it. Yet despite these guidelines, Europe’s highest court of appeal for human rights, the Grand Chamber, upheld the imposition of liability on the online news portal Delfi, for anonymous comments on its website.
Delfi’s Methods and the Facts
Delfi is one of the largest news portals on the Internet in Estonia. On 24 January 2006 Delfi published an article titled, “SLK Destroyed Planned Ice Read.” In less than 24 hours the article attracted 185 comments with over 20 containing personal threats and offensive language against the SLK’s sole and majority shareholder at the time. His lawyers requested Delfi to take down the offensive comments, which they did immediately, and sued for half a million Estonian Kroons.
Delfi’s status as an online news portal, the third party nature of the comments and the immediate removal of the comments would appear to have exempted it from liability. In addition Delfi had a system that automatically screen for offence words that incited hatred and any reader could mark a comment as insulting, following which it would be removed expeditiously.
The role of any chamber of the European Court of Human Rights, as is constantly reiterated through its judgements, is not to examine domestic or European law and interpret accordingly, but rather to ascertain whether the effects of the judgement of national courts are compatible with the European Convention of Human Rights. Thus, when examining any restriction of free speech, the court will analyse the situation on a case by case basis and determine whether the restriction is (i) provided by law, (ii) pursues a legitimate aim, and (iii) is necessary in a democratic society.
For a restriction to be provided by law, the law restricting freedom of expression must be reasonably foreseeable. When examining Delfi’s claim, the original Chamber found that the as a professional publisher, Delfi should have been familiar with the domestic legislation, and, if they had sought legal counsel, it would have been reasonably foreseeable that they, as an intermediary under Estonian laws, would have been held liable. Given that the defamatory nature of the comments was not disputed by either party, the legitimate aim was naturally the protection of the rights and reputation of others. When determining whether the said restriction was necessary in democratic society, the chamber gave great weight to the fact that Delfi was the only party who could control the comments once they were posted. The original chamber also thought it disproportionate to put the onus of identifying the original authors of the comments on the aggrieved party, given the technical difficulties involved of locating people on the internet. In light of this, and the negligible and civil nature of the fine imposed on Delfi, the original chamber ruled that the restriction on free speech was in fact proportional and there was no violation of Article 10.
The outcome of the Grand Chamber judgement was contingent on two broad principles, firstly, they agreed with the original Chamber judgement in characterising Delfi as possessing the level of responsibility usually attributed to publishers due to the control they exercised over the comments in question. But the second line of reasoning was unique to the Grand Chamber, and raises some troubling implications for intermediary liability. The Grand Chamber imposed a higher burden imposed on Delfi due to the ‘clearly unlawful’ nature of the comments.
The court notes with some delicacy that there are differing legal principles that apply to an Internet based media operation as opposed to traditional print media, and even calls for a “graduated and differentiated” application of liability. However, ultimately it follows in the footsteps of the original Chamber judgement and uses two sets of facts to hold that an online portal can be held, in principal, liable for the third party comments on its site. Firstly, it gives great weight to Delfi’s economic interest, and notes that that due to advertising on the site, Delfi had an adverse interest in generating comments. Secondly, it again points to the fact that once a comment was posted, even a user could not remove it, Delfi was the only one capable of doing this. The court uses this to point to the level of control that existed over the comments. This added responsibility on the portal due to the existence of an economic interest does not take into account the costs of the website in generating public debate and as is eloquently noted in the dissenting opinion of Judges Sajo and Tsotsoria, “information is not cheap.” Additionally, a commenter on Delfi’s site would have neither been an employee of the publisher, and in all probability not even known to the publisher. Additionally, with the large number of comments flowing into websites, the control that both the Chamber and Grand Chamber concludes Delfi to have, presupposes a level of knowledge that in most cases intermediaries do not have.
The second, and novel, aspect of the Grand Chamber’s judgement is that it imposes a higher burden on intermediaries in cases where third party content is ‘clearly unlawful’. The court holds the comments to be manifestly unlawful and argues that some comments are incompatible with the values of the European Convention of Human Rights itself, and thus in violation of Article 17. Previously, the type of speech condemned under Article 17 have been holocaust denial, justification of pro-Nazi policies and portraying Jews as the source of evil in Russia. However, throughout the judgement the court uses the legitimate aim of ‘the reputation and rights of others’ to justify the restriction on free speech. This is inconsistent with the analysis provided by the court itself in the past, because speech that is hit by Article 17, is deemed to have no value and acquires no protection under Article 10, thus rendering meaningless the three part test and the proportionality analysis provided in the judgement. Thus without a detailed analysis of the comments on Delfi’s site, the Grand Chamber has basically imposed what amounts to strict liability on intermediaries for these ‘clearly unlawful’ comments, without clearly delineating what aspects of the comments meet this standard. At heart, Delfi originally began with a defamation claim, and nine years later the Grand Chamber’s re-characterisation of the comments as hate speech leaves much ambiguity as to whether defamatory material, or what other content, would also result in an online portal being held liable for such content merely existing on their website without their knowledge.
Perhaps the dissenting opinion in the judgement best highlights the dangers that this could result it for the future of intermediary liability. The latest judgement by the Grand Chamber requires intermediaries to remove ‘clearly unlawful’ content as soon as it is published, when they may not even have actual knowledge of its existence. The only way to do this is to ensure round the clock supervision. This may even result in smaller online sites who cannot afford such supervision to discontinue comments on their sites. Even larger sites, naturally wary of legal disputes, are likely to implement overbroad forms of censorship of third party content on their sites, leading to collateral censorship. In 2011 the Human Rights Council’s Special Rapporteur stated that “no one should be held liable for content on the Internet of which they are not the author, and no State should use or force intermediaries to undertake censorship on its behalf.” The imposition of liability on Delfi has certainly created a significant amount of uncertainty regarding the principles of intermediary liability and only time will tell whether it is the exceptional circumstances of this case that merited such a result, or this signals a departure from the ‘actual knowledge’ and safe harbour standards that intermediaries currently enjoy.
Some other analysis of the Judgment are available below:
Delfi v. Estonia: Privacy Protection and Chilling Effect (Verfassungs Blog)
European Court of Human Rights Undermines Essential Protections for Free Expression Online (Centre for Democracy & Technology)
The Delfi AS vs Estonia judgement explained (LSE Media Policy Blog)
(Vasudev Devadasan, an intern at CCG is a third year student at Jindal Global Law School and a former Price Moot alumnus where he worked on the issues of hate speech and intermediary liability)