“For the first time in its jurisprudence, the European Court of Human Rights (hereinafter, the “ECHR”) addressed the liability of Internet Service Providers (hereinafter, “ISPs”) for user-generated-content. Particularly, the Court ruled on the liability of hosting services for the storage of third-parties unlawful comment.
The applicant before the ECHR, the news portal Delfi As, had published an article on its webpage about an Estonian ferry company’s decision to change the route of its ferries to certain islands. Such decision caused the ice breach and the delay of the opening of ice roads, a cheaper and faster route to the islands than ferry services. Below the article many readers wrote comments containing personal threats and highly offensive language against the owner of the company, who brought civil proceedings against Delfi for defamation.
In the course of domestic proceedings, Delfi argued that its role was that of a mere technical intermediary ISP, in particular a hosting service provider, in respect of the readers’ comments. Thus, the alleged liability of Delfi for UGC had to be examined under the exemption system for intermediaries established by the Directive 2000/31/EC, on Electronic Commerce and national legislation transposing the Directive. According to the said regulation, in order to benefit from the foregoing exemption regime, a provider hosting service, upon obtaining actual knowledge of illegal activities has to act expeditiously to remove the information concerned.
Delfi concluded that it had only played a passive role in hosting the comments; it had had no active knowledge of the unlawful comments; nor had it been aware of the illicit comments before the notice of the claimant, after which the applicant company had promptly removed the comments. Moreover, Delfi had taken measures to prevent unlawful comments including an automatic filter system of deletion of comments and a notice-and-take-down system in place according to which anyone could notify inappropriate comments to the webmaster.
Estonian Courts observed that Delfi´s role was not of a merely technical, automatic and passive nature. It had integrated the comment environment into its news portal inviting users to add comments without identifying authors of them. In this sense, its income depended on the advertisements published on the portal, which, in turn, was linked to the number of comments.
Domestic Courts also noted that the company had enacted the rules for participation prohibiting comments contrary to good practice or containing threats or insults. The users, on the contrary, could not change or delete the comments they had posted. Given that Delfi had control over the third-parties comments he had to be deemed as a publisher rather than a technical intermediary ISP. This definitively excluded the application of the exemption liability scheme of the Directive.
Therefore, Delfi itself was to be considered the publisher of the comments, and consequently it could not avoid responsibility by publishing a disclaimer that it was not liable for the content of the comments. In conclusion, national Courts relied on the provision of the Civil Code –not on the exemption system provided by the Directive- to find Delfi liable for the offensive comments posted by its readers and, consequently, awarded damages against the portal.
Delfi complained before the ECHR that being held liable for the comments posted by its readers infringed its freedom of expression (right to impart information) as provided in Article 10 of the Convention.
The question at issue before the ECHR is whether portals´ obligation to ensure that user generated content do not infringe personality rights of third persons is proportionate given the facts of the case.
Based on the above, in particular the insulting and threatening nature of the comments, the insufficiency of the measures taken by the applicant company to avoid damage being caused to other parties’ reputations, and the moderate damages imposed on the applicant company, the ECHR considered that the domestic Courts´ finding was a justified and proportionate restriction on the applicant company’s right to freedom of expression.
In assessing the relevant question of the liability of an Internet portal for user-generated-content, the ECHR considered the following circumstances.
First, it is not ECHR task to take the place of the domestic Courts in the interpretation of whether or not the activities of ISPs may fall under the exemption liability regime. The Court’s role –said the Strasbourg Court- is confined “to ascertaining whether the effects of such an interpretation are compatible with the Convention”.
In this sense, the fact that the publication of articles and comments on an Internet portal was found to amount to journalistic activity, and the administrator of the portal was deemed as a publisher by domestic jurisdiction can be seen as “application of the existing tort law to a novel area related to new technologies”. According to the ECHR, general provisions of law can at times be better applied to changing circumstances than detailed regulation.
Second, given the notoriety and the audience of an Internet portal and the nature of the information published by the portal, such hosting platforms should be in a position to assess the risks related to its activities and “be able to foresee, to a reasonable degree, the consequences which these could entail”.
Third, the steps taken by an Internet portal to prevent the publication of defamatory comments (such as a word-based filtering system or a notice-and-take-down notification system) should be able to prevent a large number of unlawful comments from being made, and to remove them in good time.
Four, making an Internet portal liable for third-parties comments rather than the actual authors of them is practical, especially when most of the posts are anonymous and users of the service are not required to register themselves; but it is also reasonable if the news portal receives commercial benefit from comments being made.
Finally, the Court addressed the consequences of an Internet portal being made liable. In this sense, awarding a small amount of damages by domestic Courts against large portals or avoiding issuing preventive orders about how a portal should protect third party rights cannot be considered a disproportionate interference with free speech.
Estrella Gutiérrez David
Profesora de Derecho de las Comunicaciones y de las TIC (Universidad Carlos III de Madrid)