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Am I my users' keeper?

European Court of Human Rights' decisions leave the right to free expression online in the context of user generated content as unclear as ever.

April 2016

Operators of websites which support user generated content (UGC) have always had to perform a difficult balancing act between permitting and encouraging a free expression of views and ensuring that their sites do not become a haven for offensive or indeed criminal behaviour.

It is not a simple choice between censorship and an editorial free-for-all; very few websites offer no moderation at all and the purpose of the site will dictate the types of comment and the risk involved in its running. Political and news sites with open comments facilities are much more likely to attract controversial, offensive and even illegal UGC than forums devoted to less controversial topics but they are also the sites on which users most prize the ability to speak their minds without restraint.

These issues have recently been considered by the Grand Chamber of the European Court of Human Rights (ECtHR) in two cases. The ECtHR ruled first in favour of the necessity of monitoring and removing hate speech and "unlawful content" from news sites which permit UGC. In the second case the court sought to clarify the extent of site hosts' liability more broadly, ruling that the penalties imposed in that case amounted to a breach of the right to free expression.

The Delfi ruling

In June 2015 the ECtHR handed down its ruling in the case of Delfi AS v Estonia. The 86 page judgment was set to be controversial regardless of its findings, as the issues considered by the court dealt with the eternally fraught line between the right to free speech and the desire for the state to provide protection against the harmful effects of such speech.

The applicant, Delfi, was an internet news portal publishing over 300 stories a day in Estonia, its articles receiving over 10,000 reader comments per day. Delfi published an article about SLK, a company that provides a public ferry service in Estonia. The article attracted 185 comments against some of its senior executives. Six weeks after the comments were posted the executives' lawyers requested that some of them be removed and claimed damages. The comments complained of were clearly unlawful under Estonian law and included hate speech and incitements to violence. Delfi immediately took down the 20 comments but refused to pay damages, whereupon it was sued and found liable for failing to provide adequate protection for the personality rights of others (a category of tortious harm that is equivalent to defamation under English law).

ECtHR

Delfi took its case to the ECtHR, arguing that there had been a violation of its Article 10 right to freedom of expression under the European Convention on Human Rights by the Estonian court's decision that it was liable for the six-week period before it was put on notice of the UGC complained of by SLK. Delfi also argued that it should have been exempt from liability under the EU hosting exemption in the E-Commerce Directive. A seven-judge chamber of the ECtHR held that there was no violation of Article 10 by Estonia. So controversial was this judgment that it was reviewed by the 17-judge Grand Chamber.

The Grand Chamber found that the interference in Delfi's rights in this case was prescribed by law in a manner that was or should have been reasonably foreseeable. The Grand Chamber did not challenge the finding of the Estonian Supreme Court that the hosting exemption did not apply in light of Delfi's economic interest in, and potential control over, the comments.

The Grand Chamber found that Estonia's exercise of interference with Delfi's rights was for the legitimate aim of protecting the reputation and rights of individuals (Article 8 rights) and accepted that the imposition on Delfi of an obligation to remove hate speech and incitements to violence without delay was a proportionate interference with Delfi's right of free speech for this purpose.

The MTE and Index.hu Zrt ruling

The Delfi ruling attracted consternation from free speech activists and concern from governments that strike a different and more publisher-friendly balance between enforcing Article 8 rights and upholding Article 10 freedoms.

The first decision in this area since Delfi was handed down in February 2016 in the case of Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary.

Despite strong similarities in the facts of the cases, the ECtHR held in Magyar & Index.hu Zrt that there had been a violation of Article 10 rights because the Hungarian courts had failed to properly balance the right to freedom of expression under Article 10 with the right to protection of reputation under Article 8. It is important that the UGC in this case was damaging to reputation but not found to be threatening or hate speech, as was the case of the comments in Delfi. The Court also took into account that the applicants had faced immediate court action – those complaining about the UGC had not approached the platform first despite the fact that it has a functional notice-and–takedown system in operation.

The ECtHR ruled that notice-and-take-down systems of the sort that Delfi had used, and as were used by the site in the present case, could provide an appropriate way of balancing competing rights to reputation and freedom of expression, and there was no reason to hold that such a system could not have adequately protected the commercial reputation of the company that brought the Hungarian proceedings.

In cases where user comments contained hate speech and physical threats to individuals (as had been the case in Delfi), the public interest and the rights of individuals might justify imposing liability on internet news portals who failed to take measures to remove the comments without delay, even without receiving complaints.

Distinguishing the Delfi and Magyar & Index.hu Zrt cases

Despite the best efforts of the ECtHR to align the two judgments and the factual differences in the cases, there is a clear tension between the decisions in Delfi and Magyar & Index.hu Zrt. In the Hungarian case the ECtHR made clear its disapproval of imposing strict liability on website operators as requiring "excessive and impracticable forethought". However, in Delfi the judgment explained that the controversial nature of the article and the nature of the comments the website generally attracted should have put the website operator on notice. The Court also commented that Delfi, being a large commercial internet news portal, was far better placed to prevent or remove such comments than any potential victim of hate speech, who would have to continuously monitor the internet in order to effectively rely on such systems alone. These factors were not present in the Hungarian case, so the standard of monitoring that should be expected of the defendants was accordingly lower.

However, it is hard to see how even the finding of an Article 10 violation in Magyar & Index.hu Zrt will prevent the chilling effect on freedom of expression that would occur if national governments were to take the principles of the Delfi judgment to their logical conclusion. If the operator of a website may be held liable for "clearly illegal content" even in the absence of complaints about that content and whilst operating a notice-and-takedown system, then the risk to its business in operating will not be diminished by the fact that it is not liable for less serious attacks on companies and individuals – the monitoring it may need to undertake will be the same either way. That potential liability is at odds with the prevailing view under English law (as reinforced by the case of Kaschke v (1) Gray (2) Hilton [2010]) which gave the clear message that to optimise their chances of having a hosting defence under the E-Commerce Regulations 2002 for liability in relation to UGC, hosts should refrain from monitoring or moderating UGC, and should instead take material down as soon as they receive a complaint about it. Though it is relevant that in Kaschke the court was considering defamatory and not threatening or otherwise criminal UGC and so the situation was akin to that in Magyar & Index.hu Zrt and not Delfi.

The broader context

The ECtHR cases need to be viewed in a broader context in which UGC, editorial and journalistic content are not always distinct and separable and in which liability for hosted content extends beyond liability for offensive or defamatory content to encompass that which infringes intellectual property rights.

In the recent case of England and Wales Cricket Board Ltd and another v Tixdaq Ltd and another [2016] the use of UGC and the inability of the defendant website to control it played an important factor in the finding of liability for copyright infringement.

Broadcast

The defendants' employees, contractors and users uploaded clips of broadcasts of cricket matches lasting up to eight seconds onto the defendants' website and mobile applications, and social media feeds where they could be viewed by users. The claimants argued that the clips infringed copyright and sought damages as well as an injunction.

The defendants argued, amongst other things, that liability for damages should not extend to the UGC hosted across the defendants' platforms. The judge did not rule on this point but found that it was likely that a defence would be available to the defendants in respect of user-posted clips which were not editorially reviewed, but not in respect of clips which were editorially reviewed. However, this defence against a grant of damages would not prevent the grant of an injunction against the platforms.

This case demonstrates the difficulty for site operators in a multi-platform reality where the boundaries between UGC and content are too blurred to accurately apply previous case law. In this scenario every new platform model pushing the boundaries and encouraging users to post content is a potential test case for which legal precedent has diminishing value.

Challenges for site operators - Key points to take from the ECtHR cases

In the light of the recent ECtHR jurisprudence it is easy to think that website operators are faced either with serious risk of liability for UGC or an obligation to impose restrictive pre-publication moderation which will surely deter users from engaging with their sites. However, the case law need not require drastic action to be taken yet and the following points should be considered by site operators before they amend their procedures:

  • The cases before the ECtHR dealt with the impact of state action upon free expression, not the right to privacy and reputation. Nor did they directly consider the manner in which Article 8 rights should be protected – the ECtHR did not affirm the type or manner of protections offered by the national courts and nations have significant latitude in how they choose to protect Article 8 rights. Whilst the judgments seek to clarify how far the state can go to protect Article 8 rights before unacceptably impacting upon freedom of expression they have not set down any requirements for national governments to impose specific restrictions upon site operators.
  • The ECtHR cases gave little consideration to the availability of the hosting defence under the E-Commerce Regulations (as a matter of EU statute such a consideration would be outside the Court's jurisdiction). Had the Estonian Supreme Court referred questions on intermediary liability to the European Court of Justice the whole issue might have taken a different direction and until the ECJ considers the issue fully the availability of the defence in cases of potentially criminal UGC remains unclear.
  • The nature of the website in question and the specific content about which users were invited to comment or provide other UGC is always determinative to the outcome of cases such as those considered above. Where sites routinely attract controversial or potentially illegal UGC, the operators should consider themselves on notice, particularly when posting content they know is likely to generate a strong reaction. In those cases comments should be monitored (and possibly pre-approved), if they are permitted at all.
  • For the majority of sites permitting UGC (those not hosting news or political content) no change in operation is required, provided that a robust notice-and-takedown system is in operation.

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Am I my users' keeper?
Jo Joyce

Jo Joyce


Jo examines the current case law addressing the potential liability of operators of websites supporting user generated content.

"...the issues considered by the court dealt with the eternally fraught line between the right to free speech and the desire for the state to provide protection against the harmful effects of such speech."