After Delfi, the chilling effect on web site comments in Europe has begun

At WordCamp Europe I discussed what the verdict in Delfi v Estonia means for our profession. This case, which was heard in the European Court of Human Rights (ECHR), concerned the issue of liability for comments on web sites, and had huge implications for any web site in Europe that allows comments.

The dispute was over comments left on a story about a politician which ran in an Estonian newspaper’s web site in 2006, which the politician felt were defamatory, and centered around the issue of whether the newspaper carried any legal liability for those allegedly defamatory comments. While web site owners have always enjoyed some protection – known as intermediary liability – under the EU E-commerce directive, the claimant in Delfi brought the case as a matter of human rights legislation (e.g. his rights had been breached).

It took nine years for the dispute to rumble through the European justice system. Turning matters of web development into Jarndyce v Jarndyce is always catastrophic. Why? It means that a panel of judges who in all likelihood rarely, if ever, touch any sort of computer sat down in 2015 to evaluate a snapshot of how the web worked in 2006, when news web sites were still relatively simple and one-click social sharing – indeed, social media – had not yet been invented. What could possibly go wrong?

In June the Court finally ruled that Delfi did indeed carry legal liability for the comments made by members of the public on its web site, thereby jeopardising the concept of intermediary liability that has protected web site administrators in Europe for twenty years. An excellent post dissecting the verdict is here.

Some of the statements made on this case by the ECHR judges are astonishing. One of them made this comment:

In our view, member States may hold a news portal, such as Delfi, liable for clearly unlawful comments such as insults, threats and hate speech by readers of its articles if the portal knew, or ought to have known, that such comments would be or had been published on the portal. Furthermore, member States may hold a news portal liable in such situations if it fails to act promptly when made aware of such comments published on the portal.

What this learned judge means is that from now on, web site administrators are expected to be psychic. You are simply expected to know, in advance, that specific defamatory comments will be made on certain stories, so that you can arrange to delete them, in advance. Minority Report meets your web site.

If you think that is worrisome, here is what another judge in the case had to say:

It is completely unacceptable that an Internet portal or any other kind of mass media should be permitted to publish any kind of anonymous comments. We seem to have forgotten that “letters to the editor”, not so long ago, were double-checked as to the identity of the author before they were ever deemed publishable.

So here we have a judge viewing the way we discuss politics in the Twitter revolution era through the lens of how we used to send a letter in the post to a printed newspaper. (And to think members of the legal profession take umbrage when we accuse them of not understanding the internet. Apparently they’ve never heard of ‘whistleblowers’.)

The verdict in Delfi v Estonia carried the risk of creating a chilling effect across Europe, where web site administrators might feel compelled to pre-moderate all comments or even switch them off altogether lest someone cry “defamation!” and sue the web site. Likewise, that chilling effect creates an atmosphere where people may feel obliged to self-censor what they have to say, as the web site administrator might have to delete their comment anyway lest they be sued for it. It is a strange irony for a case which was brought on the concept of human rights.

It seems that we did not have to wait long for the chill to descend over Europe.

The BBC reported last week that many major web sites are beginning to switch off comments. Out-Law has followed up by connecting that “switch-off” to the ECHR verdict. The latter offers the commentary “This has some worrying implications for freedom of expression.” No, really?

There may be some hope in the form of – believe it or not – the Digital Single Market strategy. With the proper guidance, the DSM could restore some of the legal protections web site administrators have been able, until recently, to take for granted; or it could go in the other direction and create more obligations for web administrators to become pre-crime content police.

Until then, being a ‘then’ which may never happen, web site administrators now have three issues to think about regarding comments: one, the question of their increased risk of their own legal liability for what their visitors say in comments or social shares; two, the trade-off between protecting themselves legally and being complicit in the spread of a chilling effect on free speech; and three, the frustration of working in a field where the rules are set by parties whose every action “exemplifies their poor understanding of the realities of online publishing.”

I know what path I would choose.

Please do share your thoughts on this development below. Oh, wait.