It’s a decision that should send chills throughout the European webmaster community. In a 15-2 vote, the European Court of Human Rights has ruled that an internet news portal is liable for the content of user-generated comments left on its website.
The case, Delfi AS vs. Estonia, specifically focused on the publishing of offensive comments on an internet news portal — comments that violated Estonian laws on hate speech. In 2006, Delfi — a large news portal in Estonia — published an article about a ferry company. In the comments on Delfi’s site, “many readers had written highly offensive or threatening posts about the ferry operator and its owner,” the court’s decision says. Lawyers for the ferry company got involved and, about six weeks later, Delfi removed the offensive comments. The court’s release says the comments “were tantamount to hate speech and incitement to violence against the owner of the ferry company.”
There’s no doubt that kind of thing happens all around the world. In the U.S., however, the Communications Decency Act (CDA) specifically says that websites aren’t liable for the comments (and content) that users post online. U.S. law, as I understand it, treats website owners as a service provider and puts no liability on them for what users post. The European court doesn’t see it that way:
Firstly, as regards the context, the Grand Chamber attached particular weight to the extreme nature of the comments and the fact that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. Moreover, as the Supreme Court had pointed out, Delfi had an economic interest in the posting of the comments. The actual authors of the comments could not modify or delete their comments once they were posted, only Delfi had the technical means to do this. The Grand Chamber therefore agreed with the Chamber and the Supreme Court that, although Delfi had not been the actual writer of the comments, that did not mean that it had no control over the comment environment and its involvement in making the comments on its news article public had gone beyond that of a passive, purely technical service provider.
The court points out in its ruling that it doesn’t apply to other sites like forums or social networks … but who’s to say such a ruling won’t expand to other types of sites in the future?
The TechDirt website calls this court ruling a “huge loss for free speech in Europe,” and rather than me continuing to recap the legal decision, let me highly recommend you read Mike Masnick’s analysis.
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