ECHR rejects free speech plea over offensive online comments

Danger ahead: commentards at work

In the US it is different, but in the European Union, free speech is no defence for a publication when readers make defamatory comments on its website.

Setting this in stone, the European Court of Human Rights yesterday rejected a plea from a leading Estonian news website contesting on human rights grounds a fine for offensive posts made by anonymous posters.

In 2006, Delfi published a piece about a ferry company changing its routes to some islands, causing ice to break and preventing the making of cheaper, faster ice roads. Many angry readers posted "highly offensive or threatening" comments about the ferry operator and its owner".

The owner sued Delfi and two years later an Estonian court awarded him about 300 euros in damages. The key basis of the ruling was the court's rejection of Delfi's argument that under EU Directive 2000/31/EC on Electronic Commerce, "its role as an Internet society service provider or storage host was merely technical, passive and neutral, finding that the portal exercised control over the publication of comments".

And so to the ECHR. You can read a press release summarising the ruling (PDF) here, but in essence websites cannot rely on automated moderation tools or report abuse buttons alone. We need to act quickly when abuse is reported. Also, "given the nature of the article, the company should have expected offensive posts, and exercised an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation."

Reg readers, this does not affect us or you. We already combine auto-moderation with human oversight. And we pre-mod some stories - in live court cases, for example - where we anticipate libel or contempt of court issues. And we pre-mod some commentards all the time, if they are prone to defamatory or offensive outbursts. If we get this wrong, we are exposed under UK law (yes, that includes Scottish law) to much more onerous penalties than Estonian courts appear to dole out.

The Register deals with plenty of offensive and defamatory comments most days but there have been very few threats. Only once, I think, has a commentard got the banhammer for threatening to kill someone.

But wouldn't it be so much easier, if you could all be, well, nice ... ®

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