1 April, 2014

ECtHR Rules about Liability for Anonymous Comments!

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Category: Discrimination, European Action Week, Racism
Gubaz Koberidze
6 pm

LusineBy Lusine Ghazaryan

Recently an interesting and so-called “controversial and alarming” judgment was issued by the European Court of Human Rights (ECtHR), which raised huge debate and discussion in international legal communities. The case, Delfi AS v. Estonia, was a ruling about an Estonian news site, which was held liable for offensive comments that were posted by readers below one of its online news articles. Readers were anonymous. Many civil society organizations and media companies, such as Google, Forbes, The New York Times, Guardian News, have been calling for a review of this decision, as it is believed to be a serious blow to freedom of online speech.

What is important to know about this decision?

This case involves Delfi AS, one of the largest news sites on the Internet in Estonia.  In January 2006, Delfi published an article on its website about a ferry company that had decided to change the route its ferries took to some islands. This had caused ice to break where ice roads could have been made in the near future thus delaying the opening of the latter for a while. Below the article many readers had written highly offensive or threatening posts about the ferry operator and its owner. The owner sued Delfi and Estonian courts found that the comments were defamatory, and that Delfi was responsible for them. Delfi applied to the European Court of Human Rights arguing that the state of Estonia violated article 10 of the Convention, i.e. it’s freedom of expression online.

However, in October 2013 the European Court of Human Rights held, unanimously, that there had been no violation of article 10 of the Convention stating that given the nature of the article, the company should have expected offensive posts, and exercised a degree of caution so as to avoid being held liable for damage to an individual’s reputation“.

Moreover, if there is a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech,” an Internet news site should take appropriate measures to avoid any defamation that may harm other persons’ reputations.

The Court further continued that the disclaimer, the notice-and-take-down policy of the company were insufficient in means of preventing the harm to third party reputations, and word based filter is usually quite easy to bypass. That is to say, Delfi should and could have taken additional measures for the other party reputation not to be harmed.

But what is most crucial in the Court’s finding is about the technical challenge to identify the authors of defamatory comments, as they were anonymous. And it was Delfi’s choice to allow for anonymous comments in its website. Moreover, Delfi pursued economic interest when allowing for anonymous comments in its website. Thus [m]akingDelfi responsible for the comments was therefore practical; but it was also reasonable, because the news portal received commercial benefit from comments being made.”

What is good and what is bad about this decision?

It is known that human rights violations are more at risk in the online platform for many reasons, including for the fact that in many cases the perpetrators know that they are not going to be held liable due to lack or absence of identification information about them. This belief is continuously contributing to practice of human rights violations of many targeted groups, individuals and other persons shaping a culture of impunity online. Many cases remain unaddressed because neither a website nor anonymous commenter of a website may be held liable. So, who is going to take the responsibility for these cases? We should think about it!

From the other hand, this decision may be a serious threat for future anonymous comments online, as if it has the value of precedent, many media organizations would rather choose not to allow for anonymity than to carry the burden of liability. And sometimes anonymity online has value and contributes to more engagement and more freedom of expression.

However, this judgementhas not entered into force yet, as it has recently been referred to the Grand Chamber, offering the Court to quash it.

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