on intermediary liability
The future for online discussion platforms in Europe is looking cloudy following yesterday's ruling of the European Court of Human Rights in the case of Delfi AS v. Estonia. In a disappointing decision, the court affirmed that Estonian courts were entitled to hold an online news portal liable in defamation for comments submitted anonymously by readers. The court was unmoved by the fact that the publisher, Delfi, had set up a system for users to flag and automatically remove comments that they found offensive, or by the fact that the comments at issue had been removed prior to the initial lawsuit being filed.
The court ruled that the finding of Delfi's liability did not violate the guarantee of freedom of expression under Article 10 of the European Declaration of Human Rights, but the ramifications of the ruling on freedom of expression will be profound. Indeed, its effects have already been felt. Following the initial complaint, delfi.ee retained a team of moderators to sift through the site's anonymous and pseudonymous comments, which are segregated from those of registered users, and hidden by default. Other Estonian discussion fora, unable to afford to hire moderators, have simply shut down anonymous comments altogether, demonstrating that Delfi's first victim would be anonymous speech.
The ruling undermines the notice-and-takedown regime established under E-Commerce Directive (which is broadly Europe's equivalent to the DMCA takedown regime, but covers all types of illegal or infringing content, not just copyright infringements). Under the E-commerce Directive, a news portal such as Delfi is exempted from liability for content unless it refuses to take action to remove that content after being notified of its illegality. Unfortunately there is a loophole in the E-Commerce Directive in that it provides a minimum level of intermediary liability, but does not define the limits of liability—which is why Delfi could be found additionally liable under Estonian law for defamatory comments that were published before the notification took place.
The European Court of Human Rights had an opportunity to fix the upper limits of intermediary liability in accordance with the established standards of freedom of expression online. For years, the key experts on international human rights law have emphasized the importance of allowing intermediaries to act as impartial relays of their users' communications to protect free speech online. By rejecting that consensus, the ECHR has opened the doors to laws that chill speech by requiring Internet companies to police their users, or risk financial ruin.
The ruling also conflicts with the Manila Principles on Intermediary Liability, which are a set of best practices for Internet companies to deal with disputes over user-submitted content, and a set of guidelines for regulators constructing intermediary liability regimes. The Manila Principles, endorsed by civil society groups from around the world, provide that “Intermediaries should be immune from liability for third-party content in circumstances where they have not been involved in modifying that content,” and that “Intermediaries must not be required to substantively evaluate the legality of third-party content.”
As there is no appeal from this decision, the order of the day is damage control. The ruling has no binding impacts on other European courts or legislatures, so they are best advised to treat it as being strictly limited to the narrowest set of facts. If on the other hand the ruling is treated as a green light to impose greater liability on intermediaries than the E-Commerce Directive already imposes, the inevitable result will be the silencing of European users' speech. This in turn will contract the scope of permissible online expression, resulting in discussions that will be constrained by the legally conservative policies of intimidated Internet companies. That would lead to online forums that must be designed to offend no-one, and create limited conversations that may be more “civilized” in the eyes of this court but also more homogenous, subdued, and deferential to those with power and influence.