European news portals may be held liable for abusive comments

September 2015 | PROFESSIONAL INSIGHT | RISK MANAGEMENT

Financier Worldwide Magazine

In the age of social media and the internet, the comments section of news articles is fertile ground for abusive and hateful comments, often from anonymous posters. Many news portals have struggled with how to handle these comments. Reuters recently announced that it would no longer allow users to post comments on news stories. Other organisations, such as the New York Times, employ a full-time staff devoted to screening user comments.

Whether news organisations are required to take this sort of action varies drastically based on whether US or European laws apply. In the US, news organisations are not obligated to employ screening staff or otherwise regulate comments made by users because Section 230 of the Communications Decency Act prevents news organisations and social media sites from being held liable for third parties’ comments. In Europe, on the other hand, as made clear in a recent case in the European Court of Human Rights, news portals may be liable for unlawful comments made by anonymous, third-party individuals and must implement policies to screen comments. This ruling is especially important because the Court took the news portal’s reputation for publishing defamatory comments into concern in its ultimate conclusion.

Judgment entered against Delfi under Estonian law holding it liable for anonymous, third-party comments

In January 2006, Delfi AS — one of the largest internet news portals in Estonia — published an article about a company known as ‘SLK’. Approximately 20 anonymous comments on that article contained threats and offensive language targeted at a member of SLK’s supervisory board, known in the court documents only as ‘L’. In March 2006, L’s lawyers demanded that Delfi take down these comments and Delfi complied the day it received this demand. Nevertheless, in April 2006, L instituted a lawsuit against Delfi and eventually obtained a judgment against Delfi holding Delfi liable for the comments about L. In 2009, the Estonian Supreme Court affirmed that judgment.

Delfi challenged the judgment by hauling the Estonian government to the European Court of Human Rights. Delfi argued that the judgment against it violated its right to free speech under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10 starts by proclaiming that “[e]veryone has the right to freedom of expression” but goes on to limit the right by stating that “[t]he exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society... for the protection of the reputation or rights of others”.

The European Court of Human Rights disagreed, concluding that the judgment was consistent with (and perhaps required by) the Convention.

On 16 June 2015, the Grand Chamber of the European Court of Human Rights held that the judgment against Delfi did not violate Article 10. The Court limited its decision to internet news portals that “provide for economic purposes a platform for user-generated comments on previously published content”. It expressly noted that this case does not concern other fora on the internet where third-party comments can be disseminated, for example an internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channelled by any input from the forum’s manager, or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby.

Given these constraints, the Court held that “Article 10 of the Convention cannot be interpreted as prohibiting member States from imposing obligations on news portals such as Delfi when they allow readers to write comments that are made public”. In fact, the Court goes on to state that “member States may in certain circumstances have an obligation to do so in order to protect the honour and reputation of others”.

Importantly, the Court pointed out in its ruling that the “Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments… Delfi was named as a source of brutal and arrogant mockery”. So Delfi’s reputation may have influenced the Court’s ultimate conclusion.

Nevertheless, the Court appeared to stop short of requiring news portals to prevent unlawful comments from being posted in the first instance, and instead only required the news portal to promptly remove the comment after it is made (even if no complaint is lodged). The application of the Court’s ruling will depend on the domestic laws of each individual European nation, but this case makes clear that news portals in Europe should immediately review their user-comment policies and consider measures to screen and filter potentially unlawful content.

But the biggest question from this ruling is how it will impact internet news portal’s conduct in the future. The internet has radically changed how humans interact with one another and impacted social change and communications. These changes are complicated and Courts – much like society itself – are struggling to understand how to live through the new internet world. The European Court of Human Rights’ ruling in the Delphi case is one attempt to negotiate this new internet world. Social challenges such as this are likely to become more commonplace in the coming years. In light of the complexities of the internet and the varying landscape of the laws governing it, there is no guarantee that on any given day we will agree with the laws surrounding the internet.

Peter S. Vogel is a partner and Sara Ann Brown is an associate at Gardere Wynne Sewell LLP. Mr Vogel can be contacted on +1 (214) 999 4422 or by email: pvogel@gardere.com. Ms Brown can be contacted on +1 (214) 999 4887 or by email: sabrown@gardere.com.

Peter S. Vogel and Sara Ann Brown

Gardere Wynne Sewell LLP