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News site held liable for hateful comments, prompting free-speech concerns

Loek Essers and Peter Sayer | June 19, 2015
A court ruling that holds an Estonian news portal liable for hate speech in comments on its website has triggered fears for the future of online news startups.

A court ruling that holds an Estonian news portal liable for hate speech in comments on its website has triggered fears for the future of online news startups.

The news portal had argued, unsuccessfully, that requiring it to censor or moderate reader comments violated rights to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights.

The European Court of Human Rights, in a ruling Tuesday, found no such violation. But two judges who issued a dissenting opinion warned that making the portal monitor each and every comment before publication could result in "a disproportionate interference" with the news portal's freedom of expression.

The ruling is significant for media organizations and could affect how news sites deal with reader comments. It pits laws on freedom of expression against the European Union's E-Commerce Directive, which is usually seen as providing a way for websites to avoid liability for user-generated content, as long as they agree to respond promptly to requests to remove illegal material.

The Computer and Communications Industry Association, whose members include Facebook, Google and Yahoo, warned that the judgment confused the legal protections intermediaries can rely on, limiting use of user content and discouraging investment in new online services.

The court emphasized that its judgment should apply only to professional news sites that invite comments on their stories, and not to other online forums such as discussion boards, bulletin boards and social media sites.

The Estonian case began in 2006, when news portal Delfi published an article about a ferry company's decision to change its route to certain islands, breaking ice where it would have been possible for ice roads to open. This delayed for several weeks the opening of the ice roads, which provide cheaper, faster connections to the islands than the ferry service.

In the comment section under the article, readers responded with offensive and threatening posts about the ferry operator and its owner, the court said. About six weeks after publication, the ferry company's lawyers requested that the comments be removed, and Delfi promptly complied, refusing a request for 500,000 Estonian kroons (then about US$38,000) in damages.

The ferry company took its complaint to court, where a judge initially found that, under Estonia's implementation of the E-Commerce Directive, Delfi had no liability for comments on its site.

The ferry company appealed, and was awarded 5,000 kroons in damages as the case traveled up through the Estonian court system until in 2009 the Estonian Supreme court held Delfi liable, rejecting its argument that it was neutral and merely a technical service provider. The portal had not only failed to prevent publication of the comments but also failed to remove the comments on its own initiative, the court found.

 

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