Does the ECHR weaken its Delfi judgment?

Submitted by Thomas Baudewijn on February 20, 2016

In June last year the European Court of Human Rights (ECHR) scared the operators of online news portals by rendering the so-called Delfi judgment that confirmed that freedom of speech does not prevent those platforms from being held liable for illegal comments posted by users. This month however the Court came with a new similar judgment that seems the weaken the effects of Delfi.

As was the case with Delfi the matter at hand is a discussion about illegal comments about a commercial entity. However, a big difference is that in the present case the comments were a lot more civilized. Although they were “rude” and “vulgar” they certainly couldn’t be considered to be hate speech or incitement to violence. This is something the ECHR attaches a great deal of importance to.

The company that was criticized invoked its right to reputation which is equally important as the freedom of speech. The criteria that needs be taken into consideration for obtaining a balance tween the two are the same as in the Delfi case, namely:

the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and the consequences of the domestic proceedings for the applicant company

In this regard the ECHR notes that several clients who were duped had filed complaints against the company that allegedly suffered damages. Moreover the operator of the portal could not have known that their publication would lead to such a heated discussion. Another element that the Court attaches importance to is that the style used on online platforms is harder compared to an offline context.

Secondly the Court acknowledges that news portals are a form of journalism and thus must be protected as such. If operators of these portals can be held liable for comments of their users this could seriously hamper those journalistic activities.

Further the ECHR also concludes that the site in question had taken sufficient measures to prevent illegal comments. There was a disclaimer, an obligation not to post illicit opinions, a team of moderators and a notice and takedown procedure. All tip top.

Finally the Court states that the right to reputation of a legal entity does not enjoy the same scope of protection as the reputation of a natural person. At the same time liability for the comments can create a “chilling effect” causing moderation to be too strict or even lead to the comments section to be closed in its entirety.

All of the above elements lead the ECHR to the conclusion that freedom of speech was violated by holding the platform liable for the comments. Putting in place a notice and takedowm procedure is an adequate measure to preserve the balance between the right to reputation and freedom of speech.

Those who got little anxious after the Delfi case, can now release a sigh of relief. This judgment learns us that the freedom of speech will be better protected when the illegal character of the comments is not entirely clear. Only when they are manifestly illegal an online platform will need to be careful to prevent liability.

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