Webmaster and digital content providers should sit up and take notice of a 16th June ruling by the European Court of Human Rights (ECHR). By 15 votes to two, the Court ruled that an internet news portal is to be held liable for the content in user-generated comments left on its website.
The case, Delfi AS v. Estonia, centred on an article published on Estonian news portal Delfi in 2006 concerning a ferry company. The court ruled that many of the comments left on the site concerning the article were “highly offensive or threatening posts about the ferry operator and its owner.” In its release of its judgement, the court said that the comments “were tantamount to hate speech and incitement to violence.”
Undoubtedly, many articles published online invite comment that steps over a line that should not be crossed. US law, specifically the Communications Decency Act (CDA), removes website liability for user-generated content, but the ECHR has clearly decided that this is not going to be the approach taken in its jurisdiction. The 47 member states of the Council of Europe are contracting parties to the convention that established the court, so its rulings have a broad remit.
The ruling took the view that Delfi, as a commercial operation seeking to attract a large number of comments on articles published, was not a passive provider, and that it and it only has the technical means to modify published comments. The Court stresses that the ruling does not extend to forums or social networks, but who can say such a ruling will not occur in the future?
Content writing providers would do well to read the ruling for themselves and consider its implications for their own operations. Given that the separate EU Court of Justice has concentrated similar rulings much more on issues of intermediary liability, and that this ruling is in contradiction of some of the Court of Justice rulings, it remains unclear what jurisdiction prevails. Nonetheless, the potential legal implications of unmoderated comments are stark as a result of the 16th June ruling. However, a well-moderated site that encourages respectful commentary from its users is one that attracts a positive reputation and draws attention to itself for all the right reasons.
