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October 11, 2013

ECHR: Liability of Website Operators for User Comments not a breach

Category: News

Tags: Defamation Act 2013, e-commerce, ECHR, Freedom of Expression, Human Rights, online publication, reputation

Court finds no violation of Article 10 in Delfi AS v Estonia


In its 10 October 2013 judgment in the case of Delfi AS v Estonia, the European Court of Human Rights found no breach of the applicant’s Article 10 rights where the domestic court had found the company liable for comments posted by users on its website.

The applicant, a leading Estonian news portal, received a complaint from an individual about defamatory and insulting comments about him posted by users under a particular news item. In line with the applicant’s policy the comments were taken down immediately once the company was notified. However, the individual pursued the applicant for damages in relation to the period of time before the comments were removed. The domestic court required the applicant to pay €320, rejecting the applicant’s contention that the EU E-Commerce directive prevented it from being liable, deciding that it exercised too great a degree of control over comments on its website to avail itself of the provisions as transposed into Estonian law.

The European Court of Human Rights ruled that this did not constitute a breach of Article 10. It would not be drawn into interpreting the E-Commerce Directive, but did consider the practical steps that the applicant took to moderate comments: including a word filter, a notice and take-down procedure, and occasional extra monitoring of comments on controversial articles. It also took the view that to expect an individual to monitor the internet for defamatory comments and to seek to identify anonymous posters in order to proceed against them would be impractical, and potentially in breach of the State’s positive obligations under Article 8. The fact that the applicant was a commercial operator and the financial penalty a small one meant that the interference with the applicant’s Article 10 rights was not disproportionate.

In the UK, fears that the E-Commerce Directive may in fact provide an incentive not to moderate websites at all, rather than making efforts to prevent or remove comments which are defamatory, breach an individual’s privacy or incite hatred – because website operators might moderate “too much” and fall outside the E-Commerce Regulations – were also raised during the passage of section 5 the Defamation Act 2013. The ruling of the domestic court in this case provides an example of a court interpreting the E-Commerce Directive in just such a manner.