ECtHR Rules That ISPs Can Be “Publishers” Of Users’ Comments In Some Cases

Worth reading: Emma Llanso’s analysis and discussion of the European Court of Human Rights’ ruling in Delfi A.S. v Estonia.

In this case, a user had left comments on an online article published on Delfi that a reasonable reader might find defamatory.

In the Delfi case, the court ruled, a publisher that provides content, runs its business for profit or provides some kind of moderation might be held liable for user comments if those comments are defamatory. The publisher cannot rely on the protections provided in Article 14 of the E-Commerce Directive or freedom of expression provisions found in Article 10 of the European Convention of Human Rights. 

Says Ms. Llanso in part,

In a major blow for legal protections for free expression online, the ECtHR upheld its earlier decision that, as an “active” host of user-generated content, Delfi should be considered the “publisher” of its users’ comments, and thus be legally responsible for them.

Holding content hosts liable for their users’ speech is a shortcut to censorship for governments and private litigants who cannot easily identify an anonymous speaker or seek a judgment against her.  The threat of liability creates strong incentives for content hosts to preview and approve all user comments – and to censor with a broad brush, limit access to their services, and restrict users’ ability to communicate freely over their platforms.  In a world where all online speech is intermediated by web servers, news portals, social media platforms, search engines, and ISPs, the collateral consequences of intermediary liability are potentially enormous.

How is a publisher in Delfi’s situation to tell when it might be liable for a user’s comments? As Ms. Llanso points out, the court’s opinion doesn’t really give much guidance.  Troubled waters ahead. Will we see ISPs and bloggers shutting down comment boards and refusing to accept user comments rather than risk liability after this ruling?