Human Rights Court rules on ‘hate’ comments

Jon Danzig |

• A ‘shock’ decision, reported Ars Technica

The European Court of Human Rights has ruled that an Estonian news agency can be held responsible for anonymous ‘hate’ comments posted on its website.  

The Court decided that the agency’s ‘freedom of expression’ under the European Convention on Human Rights had not been breached as a result of an Estonian court imposing a ‘moderate’ fine against the agency for allowing the publication of ‘extreme’ and ‘defamatory’ comments, which incited violence against an Estonian citizen.

A factor in the Court’s decision was that the news portal provided no means for users to remove comments.

Some news media have reported the Court’s judgement as a ‘worrying setback’ forcing websites ‘to censor content’.

Delfi is Estonia’s largest internet news portal. It allowed anonymous comments to be posted by readers under its online articles. However, some of the published comments were ‘extreme’ in nature and described as representing ‘hate speech’.

Almost ten years ago, an Estonian, known as ‘L’, was the target of extreme comments posted against him on the Delfi internet portal, including incitement to violence. ‘L’ took civil action against the publisher and a County Court in Estonia agreed that Delfi should accept liability for the illegal postings. The Court imposed a ‘moderate’ fine of €320 against the news agency. The fine was upheld by Estonia’s Supreme Court when Delfi appealed against the decision.

However, Delfi was unhappy with the ruling and petitioned the European Court of Human Rights on the grounds that their right to freedom of expression – Article 10 of the European Convention on Human Rights – had been breached. It was the first case of its kind to be heard by the Strasbourg Court “in an evolving field of technological innovation”.

In its submission to the Grand Chamber of the European Court, Delfi argued that in today’s world, Internet media content is increasingly created by the users themselves. Allowing ‘everyone’ to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship.

In response the Estonian government emphasised that there was no dispute that the comments published by Delfi had been defamatory. Delfi had not been forced (by the courts) to disable anonymous comments or to change its business model. Nevertheless, the publisher had to take legal responsibility for the illegal comments and Estonia’s domestic court had been right to impose a ‘moderate’ fine against it.

Delfi’s responsibility for the comments was obvious, argued the Estonian government, as the writers of the comments could not amend them or delete them after posting them; only Delfi had the technical means to do this.

The government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person’s honour were no longer sufficient because the offensive comments had already reached the public and done the damage.

These days the biggest international news portals didn’t allow anonymous comments and there is now a trend away from allowing anonymity, the Estonian government argued. Furthrmore, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi’s website had been notorious for exactly this reason.

In assessing the case, the judges at the European Court noted that “user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression.”

This was undisputed and had been recognised the by Court in previous cases. However, alongside the benefits of allowing readers’ comments, there were also dangers.

Commented the Court:

“Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case.”

In concluding the case, the Court in Strasbourg took into account the extreme nature of the comments in question and the fact that they were published in response to an article on Delfi’s “professionally managed news service.” The Court agreed that Delfi had not taken sufficient measures to quickly remove the comments, which “amounted to hate speech and speech inciting violence”. The publisher had also failed to ensure a realistic prospect of the authors of the anonymous comments being held liable.

Consequently, the Court decided that Estonia’s domestic court actions in finding Delfi liable for the anonymous readers comments and imposing a “moderate sanction” on the publisher didn’t constitute a “disproportionate restriction” on Delfi’s right to freedom of expression

The Court in Strasbourg accordingly ruled in favour of the Estonian government that there had been no violation of Article 10 of the European Convention on Human Rights.

Legal interpretation of the Court’s ruling by Professor Lorna Woods

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