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European Court of Human Rights goes the other way on host provider privilege

There is no proactive monitoring obligation for host providers – this is the mantra of all UGC-based business models and the bottom line of the host provider privilege. Now, the ECHR has set a There is no proactive monitoring obligation for host providers – this is the mantra of all UGC-based business models and the bottom line of the host provider privilege. Now, the ECHR has set a counterpoint and ruled that a news portal may be held liable for user generated content which contains abusive language even without notice by the alleged victim or a third party. Enough to cast doubt over well-established principles?  

Probably not: Even though the ECHR´s decision of 16 June 2015 (Delfi AS v. Estonia, no. 64569/09) is prone to cause anxiety among intermediaries at first glance, there is little reason to believe it will overthrow the host provider privilege as we know it from the E-Commerce Directive and national legislation – the bottom line is that holding a portal liable for UGC under domestic law may not be a violation of the right to freedom of speech (Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms), but the judgment did not comment on whether such liability under domestic law may at the same time be a violation of the EU law privileges.

Let´s have a look at the details: A news portal published an article on the destruction of ice roads by a public service ferry company and opened a comment space for users to share their thoughts. The article itself did not contain anything illegal. The change of the ferry routes which lead to the destruction of ice roads used by residents to commute caused offensive comments against an individual who was believed to be responsible for the company's decision. The comments – undetected by the portal's existing filter mechanism – had been available on the website for six weeks before they had been immediately removed after the portal had been noticed by the victim. The news portal was held liable under the Civil Code of Estonia for defamation originating from these comments and a 320 Euro compensation was imposed.

The court found it to be in accordance with the right to freedom of speech (Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms) that the domestic court has granted compensation. In its opinion, the relevant domestic law, including its implementation of the E-Commerce Directive, made it foreseeable for the news portal that a media publisher running an internet news portal for an economic purpose could, in principle, be held liable under domestic law for publishing clearly unlawful comments. Thus, in the court's view, sufficient legal grounds for the interference with the news portal's rights were provided. In the assessment of the proportionality of the interference of Art. 10 of the Convention the court emphasized the specific circumstances of the case:

  • The court found that the comments constituted hate speech and speech that directly advocated acts of violence. Their unlawful nature did not require linguistic or legal analysis since the remarks were on their face manifestly unlawful.

  • The news portal was professionally managed and run on a commercial basis. It had actively opened the comment section and initiated comments by providing the article.

  • The measures taken by the news portal to prevent or remove such comments were insufficient.

  • There was known public concern about the controversial nature of the comments it attracted, as the Minister of Justice had noted that victims of insults could bring a suit against the news portal and claim damages.

  • Identification of responsible users was unlikely because they commented anonymously.

  • The sanction of 320 Euros was moderate in comparison to size and commercial power of the news portal.

When assessing the impacts of the decision it is important to have clarity on the scope of the court's assessment. First, it did not decide on the interpretation of privileges provided in the E-Commerce Directive and its national implementation. The only measuring scale the court applied is the Convention. Consequently the court did not verify the convincibility of the domestic court's assessment of the applicable law, in particular the interpretation of the national transition of the E-Commerce Directive. Second, it did not derive a general right for affected persons to claim damages. It cannot be concluded that not granting claims against the portal would violate a right granted by the Convention. Finally, the decisions explicitly excludes internet discussion forums, bulletin boards and social media from its scope where the providers don't facilitate the discussion by providing content themselves.

As a consequence, the learning here is that a national or European law which imposes liability on an intermediary does not necessarily violate Art. 10 of the Convention if the portal knew, or ought to have known, that clearly unlawful comments would be or had been published. No more, but no less.

Nonetheless, the case-specific reasoning the court has applied in this decision leaves the door open for misinterpretation and speculation, and it would have been more compelling if the court revealed the principles underpinning its reasoning. In particular, it remains unclear what the portal should have done to avoid liability - pro-actively prevent offensive comments from being published at all? Having been faster with removing the comments?  Furthermore, the court should have avoided the impression that the mere circumstance of providing content which might attract emotional comments could trigger a platform's liability. Such an approach does not have a foundation in the E-Commerce Directive, and a source of liability founded in the Convention that is clearly against the protection provided by the E-Commerce Directive may result in difficult scenarios.

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