Court rules websites responsible for libellous reader comments

European Court of Human Rights finds that posts made on Estonian news site were defamatory

Websites are legally responsible for libellous anonymous postings, European Court of Human Rights’ judges ruled on Thursday when it rejected a case taken by an Estonian publisher successfully sued for defamation.

Delfi AS, one of the biggest Internet news websites in Estonia, published a story in January 2006 about a ferry company's decision to change some of its routes – which led to damage to ice-floes used by motorists in deepest winter.

The ferry company sued Delfi, with an Estonian court finding in June 2008 that the comments made by readers had been defamatory and that Delfi was responsible. The court awarded damages of €320.

The website unsuccessfully appealed to the Estonian Supreme Court, before heading to the Strasbourg court where it argued that the original judgment had limited freedom of expression.

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Also, it said that an EU directive had limited its liability for the defamatory comments of readers.

Highlighting the implications of the ruling by the Strasbourg judges, the London’s based Index on Censorship warned: “It is difficult to see how any site would allow anonymous comments if this ruling stands as precedent.”

The judges found that the Estonian court’s ruling had been ‘a justified and proportionate restriction’ on Delfi’s right to freedom of expression, especially because the comments about the ferry company had been highly offensive.

In addition, the website had failed to prevent them from becoming public, had profited by their

Existence and had allowed their authors to remain anonymous, while the fine imposed had not been ‘excessive’.

The judgment by seven ECHR judges is not final, however. It may be referred to a hearing by the full court within three months. However, if a referral request is refused the chamber’s judgment will immediately become law in Estonia.

“Given the nature of the article, the company should have expected offensive posts, and exercised an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation,” said the ruling.

Delfi’s website did warn people posting comments that they were legally liable; automatically deleted posts that triggered key offensive words, while other users were able to highlight offensive remarks. However, a large number of insulting comments were still made.

“The prior automatic filtering and notice-and-take-down system used by the applicant company did not ensure sufficient protection for the rights of third persons,” said the judges, adding that advertising revenues depended partly readers’ comments.

Rejecting the argument that the ferry company could have sued those who posted offensive comments, the judges said it would have been difficult for it to have identified them and ‘disproportionate’ to expect it to do so.

The judges acknowledged that many people do not want to disclose their identities online, but the fact that information, or comments posted onto the Internet ‘will remain public and circulate forever, calls for caution’.

The volume of material online makes it difficult to detect defamatory statements for websites, the court acknowledged, ‘but this is an even more onerous task for a potentially injured person, who would be less likely to possess resources for continual monitoring’.

Describing the ruling as ‘alarming’, Index on Censorship said that controversial comments ‘can appear in the unlikeliest of places’ not just on stories that can be predicted to attract offensive posts.

“(The ruling) suggests that online portals are fully responsible for comments posted under stories, in apparent contradiction of the principle that portals are “mere conduits” for comment and cannot be held liable.

"The unanimous ruling suggests that if a commercial site allows anonymous comments, it is both "practical" and "reasonable" to hold the site responsible for content of the comments," said Index's Padraig Reidy.

Mark Hennessy

Mark Hennessy

Mark Hennessy is News Editor of the The Irish Times