Monday, 13 July 2015

SAFE HARBOR NO MORE SAFE


Given the potential for widespread and permanent damage caused by Internet publication, and given the difficulty in establishing the identity of posters of defamatory comments, it is extremely difficult to expect third parties to assume the burden of continual monitoring of the Internet. The decision rendered in Delfi v. Estonia is of great significance to website publishers, in particular news and other media organizations.

In January 2006, the applicant company, a leading Estonian news portal, published an article discussing the implications of a shipping company’s decision to move its ferries from one route to another and in doing so breaking the ice at potential locations of ice roads. In the space of two days, the article attracted 185 comments. About twenty of them contained personal threats and offensive language against L, a member of the shipping company’s supervisory board. Upon receipt of L’s complaint, the comments were taken down without delay. However, L pursued the applicant company for damages in relation to the intervening period of six weeks before the comments were removed.
In June 2009, the Estonian Supreme Court upheld the lower court’s finding that the applicant company was liable for the defamatory comments and awarded L damages. It rejected the applicant company’s contention that it was exempted from liability under the EU E-Commerce Directive (Directive 2000/31/EC) and the domestic legislation which implemented that Directive on grounds that it had had neither knowledge of nor control over the information being stored. By contrast, it decided that the applicant company exercised too great a degree of control over comments on its website to avail itself of the provisions as transported into Estonian law.
The applicant company had two general mechanisms in operation for dealing with comments. Firstly, it had an automatic system of deletion of comments based on stems of certain vulgar words. Secondly, it had a notice-and-take-down system in place according to which anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose. It also pro-actively moderated comments on controversial articles on an occasional basis.
In its Chamber judgment of 10 October 2013 the Court held, unanimously, that there had been no violation of Article 10 (freedom of expression) of the European Convention. It found that the finding of liability by the Estonian courts had been a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal had failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts had not been excessive.

The aforementioned decision was then referred to the Grand Chamber, pursuant to Article 43 of the ECHR.

The Grand Chamber of the European Court of Human Rights handed down its judgment, finding no violation of Article 10 by the Applicant (website) that was held liable for third party defamatory comments made by its users, despite the fact that the article itself was balanced and contained no offensive language. The decision affirms the judgment rendered by the first section of the Court in 2013, which also held that there had not been a violation of Delfi’s right to freedom of expression, despite the fact that it had removed the comments as soon as it had been notified of them.
The Grand Chamber emphasised a number of factors that led it to rule that Delfi was liable: the "extreme" nature of the comments which the court considered to amount to hate speech, the fact that they were published on a professionally-run and commercial news website, the insufficient measures taken by Delfi to weed out the comments in question and the low likelihood of a prosecution of the users who posted the comments, and the moderate sanction imposed on Delfi.
The above ruling has the capacity to challenge the safe harbor created for internet intermediaries in certain situations and the intermediaries will now have to take greater precautions.  


 -------- Shreya Seth, Associate, Alpha Partners

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