European Court of Human Rights Credit: James Russell (CC BY-SA 2.0)

European Court of Human Rights
Credit: James Russell (CC BY-SA 2.0)

Earlier this month, the European Court of Human Rights ruled that Delfi, a leading Estonian news organization, could be held liable for comments posted on its website by readers.

That, in itself, is a scary prospect for community professionals. But the judgment is even worse when you consider that Delfi’s comments weren’t a total free-for-all. They may not have had the greatest moderation strategy in the world – far from it – but they did have comment guidelines, a report comment function and a notice-and-takedown system in place. The day the aggrieved party reported the comments to them, they removed them.

However, the party wanted more than removal of the comments: they wanted financial compensation. When Delfi balked, a lawsuit was filed and, 9 years later, we arrive at this judgment. The Court not only placed the liability on Delfi, but was critical of the simple existence of anonymous comments and provided confusing guidance on how Delfi could have avoided liability; outside of not having comments at all.

The decision could have damaging consequences, especially for those in the European Union.

The Initial Lawsuit

On January 24, 2006, Delfi published an article about a ferry company that had destroyed ice roads – publicly accessible roads, over the frozen sea, that connect the Estonian mainland with various islands during the winter.

The comments section for this article was highly critical of the company – AS Saaremaa Laevakompanii (Saaremaa Shipping Company) – and its majority shareholder, Vjatšeslav Leedo. Many of these comments were insulting and some were personally threatening. According to the judgment, 185 comments were posted in two days. 20 of them were deemed to contain “personal threats and offensive language” directed toward Leedo and others.

Six weeks later, on March 9, 2006, Leedo’s attorneys contacted Delfi to request they remove the comments, claiming damages of 500,000 Estonian kroons (at the time, this was about €32,000 EUR/$36,000 USD). Delfi replied on the same day, confirming that the comments had been removed, but declining to pay the damages.

Leedo filed a civil lawsuit on April 13, 2006. His claim was dismissed on June 26, 2007 by the Harju County Court, which found that Delfi could not be held liable for the comments, nor did they have to monitor them. This decision relied on the Information Society Services Act, which was based on the European Commission’s E-Commerce Directive. These documents say that a service provider is not liable for the information they transmit as long as they did not initiate the transmission, select the receiver of the transmission or select or modify the information contained in the transmission.

That’s probably where it should have ended.

Leedo’s Appeal

However, Leedo was permitted to appeal the ruling by the Tallinn Court of Appeal (the second tier of Estonia’s three tier court system). The second court decided that the previous court had erred in finding that Delfi’s liability was prevented by the Information Society Services Act. The case was then referred back to the lower court, though Delfi tried (and failed) to have it heard by Estonia’s highest court, the Supreme Court.

On June 27, 2008, one year and one day after the Court’s first ruling, the Harju Country Court reversed course, finding in favor of Leedo. This time, it was the Obligations Act that supported the ruling, while the Information Society Services Act was deemed inapplicable. The Court felt that Delfi’s moderation efforts were not good enough. Even though they had placed a disclaimer on their website, had a commenting policy where they reserved the right to delete comments and instituted a system where people could report inappropriate comments.

The Court held that Delfi was the publisher of the comments and, as such, liable for them. Leedo’s personality rights had been violated in such a way that freedom of expression did not apply to the 20 comments in question. Financially, it was a hollow victory: Delfi was ordered to pay Leedo 5,000 Estonian Kroons (€320 EUR/$500 USD).

Delfi’s Appeals

Tallinn, Estonia Credit: TausP (CC BY-ND 2.0)

Tallinn, Estonia
Credit: TausP (CC BY-ND 2.0)

Money aside, the precedent was troubling. This led Delfi to appeal to the Tallinn Court of Appeal, who upheld the lower court judgment on December 16, 2008. The appeals court took issue with the speed at which Delfi had removed the comments and how they had placed the burden of reporting inappropriate comments with the potential victims of those comments.

Furthermore, they rejected the idea that Delfi should be protected from liability through the Information Society Services Act. The Court did not view Delfi as a technical intermediary because they had invited people to comment. As such, they were a provider of content services – not technical ones.

This time around, Delfi was able to successfully get the attention of the Supreme Court, but not to favorable results. On June 19, 2009, the top court sided with the Tallinn Court of Appeal.

Later that year, Delfi filed an application against Estonia with the European Court of Human Rights. On October 10, 2013, the Court’s First Section delivered a unanimous judgment against Delfi – 7 judges to 0. A few months later, Delfi asked that the case be heard by the Court’s Grand Chamber, a 17 judge panel that hears a small number of select cases, usually when there is an extraordinarily serious or unique issue being discussed.

Delfi’s case was successfully accepted by the Grand Chamber. On June 16, 2015, more than 9 years (!) after the comments themselves had been made, the court ruled – by 15 votes to 2 – to uphold the earlier ruling, affirming Delfi’s liability for the comments. Read the judgment, which I am going to quote from below.

You Should Moderate More – But if You Moderate, You’re Liable?

In numerous instances, the concurring judges felt that Delfi could do more. They talk about filtering. They talk about how long it took to remove the comments. They talk about the knowledge Delfi should have had, in expecting comments of this nature. They should have moderated more strictly, more proactively. The overall, vague message is: do more and if you had done more, you wouldn’t be here.

With this in mind, consider these two paragraphs (emphasis mine, here and throughout this article):

“… the Court considers that the case concerns the “duties and responsibilities” of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engage in clearly unlawful speech, which infringes the personality rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them.

Accordingly, the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channelled by any input from the forum’s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby.”

Much of what good community managers (and departments) do, I would consider “channeling.” We prompt people with questions, we highlight great contributions, we remove those that don’t meet the community guidelines. Channeling is how you can address the issues that the judges find so concerning. And yet, channeling could make you liable.

If you decide to let people do whatever they want on your community without any oversight, you aren’t channeling. But the court took Delfi to task for not doing enough. This seems contradictory.

Thankfully, in the U.S., we have the Communications Decency Act and the SPEECH Act, where we can do exactly what we need to do without fear of liability. The EU’s E-Commerce Directive was aimed to fill a similar need, but it hasn’t been as successful. This is apparent from the Delfi ruling, where the Court did not permit the safe harbor that the directive, or Estonia’s related Information Society Services Act, were supposed to provide.

“Completely Unacceptable … to Publish Any Kind of Anonymous Comments”

Credit: Keoni Cabral (CC BY 2.0)

Credit: Keoni Cabral (CC BY 2.0)

Veteran judge Boštjan M. Zupančič was so compelled by the case that he authored a separate concurring opinion of his own, to go with the joint opinion written by four other judges. Zupančič was elected in 1998 and is one of the two longest-serving members of the Court. He’s not a fan of anonymous comments.

“… 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,” he wrote. “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. The Government argued (see paragraph 90 of the judgment) that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, 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 had been notorious for exactly this reason.”

This speaks to one of the judgment’s central themes: Delfi shouldn’t have allowed anonymous comments. This is troubling because we know that anonymity isn’t the big issue. Not if we are talking about threats, racism and defamation. If you eliminate anonymity, those things might be reduced slightly, but they won’t be eliminated. Not only that, but other problems will surface.

“This Is an Invitation to Self-Censorship at Its Worst”

The two dissenting votes belonged to judges András Sajó and Nona Tsotsoria. Their co-authored dissenting opinion is well worth a read, as it solidly explores the negative consequences this ruling could have.

“In this judgment the Court has approved a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content). We find the potential consequences of this standard troubling. The consequences are easy to foresee. For the sake of preventing defamation of all kinds, and perhaps all ‘illegal’ activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst.”

The judges are rightly concerned that the fear of liability will cause news outlets to censor comments in an overzealous way. Not because they feel the comments are inappropriate or intolerant, but because they are afraid they will be sued, and they can’t afford to continually defend themselves in court. This could lead to protected speech being caught in the crossfire. In short, they worry that a publisher “will err on the side of protecting its own liability, rather than protecting freedom of expression.”

“To Avoid Trouble … The Safe Harbour Will Simply Be to Disable Comments”

When some publishers learn of this judgment, they will no doubt throw their hands up and rid themselves of comments altogether. Not for the same reasons that Popular Science did, and not for the same reasons that some other mainstream publications have done so. Those outlets removed comments because they didn’t find value in them, because they felt comments hurt their work or because they couldn’t justify, to themselves, the effort it took to have a great comments section.

Instead, the reason outlets will close comments is because they fear lawsuits and damages. They fear liability. Not just because the judgment shifts liability onto them, but because it provides confounding guidance on how, if and when to moderate. It creates an unreasonable burden. To go back to the dissenting opinion:

“The Court has endorsed the standard of the Estonian Supreme Court, namely that active intermediaries must remove comments “without delay” after publication (see paragraph 153 of the judgment), and not upon notice or on other grounds linked to actual knowledge. Active intermediaries are therefore invited to exercise prior restraint. Moreover, member States will be forced to introduce a similar approach because otherwise, according to the logic of the present judgment, there is no proper protection for the rights of those who feel defamed by comments. To avoid trouble, for active intermediaries the safe harbour will simply be to disable comments.”

“… the Appropriate Level of Care … in 2006 in Estonia”

AS Saaremaa Laevakompanii and DelfiSajó and Tsotsoria took the other judges to task for not making an effort to determine how these comments should have been handled – not in 2015, but in 2006. Many of the tools that news publishers use to manage comments today did not exist when Delfi was faced with these comments. But the court didn’t seek expert testimony on these subjects.

“Are there sufficient reasons for this strict liability, disguised by the fault rules of the Civil Code? The Court reviewed the precautionary measures applied by Delfi and found them inadequate. These were fairly standard measures: a disclaimer as to illegality, a filtering mechanism, the separation of the comment space from the article, and immediate removal upon notice. It was decisive for the Court that the filtering mechanism failed. There is no review of the adequacy of the filtering mechanism (was it state-of-the-art; can there be a duty to apply state-of-the-art systems; is there any reason for being held liable with a state-of-the-art filtering system?). The Court itself finds that filtering must have been a simple task and that the system failed. No expert opinion, no cross-examination.

“We are simply assured that setting up a dedicated team of moderators is not ‘private censorship’. There is no consideration of the possibility of less intrusive measures; only removal ‘without delay’, that is, upon posting (see paragraph 159), satisfies the goal of eliminating hate speech and its progeny. This insatiable appetite for preventive protection results in circular reasoning: a publisher has a similar liability, therefore an active intermediary is like a publisher.”

Later, they continue:

“Even assuming such increased likelihood of racist comments on comment sites (once again, a matter subject to proof), it remains appropriate to consider what is the proper level of care in the face of such risk. Perhaps the filtering mechanism was inadequate to meet this challenge. This was the position taken by the Court, without defining what the appropriate level of care would have been in 2006 in Estonia. We do not know and cannot know. The Court cannot replace the lack of a domestic analysis with its own analysis. Moreover, it is not for the Court to take on the role of national legislation. We cannot rule out that the need to fight racist speech (a matter of public order and not simply a personality right) might dictate a duty of care that would impose duties beyond the measures applied by Delfi. But the task of the Court is to determine whether the interference by the domestic authorities was actually based on proper and credible grounds. These are absent here; hence there was a violation of the Convention.”

The Comments

How bad were the comments themselves? The comments featured in the complaint are below. They appear to have been excerpted and would have been translated from Estonian. Please excuse the profane, racist and otherwise inappropriate remarks. [L.], [Le.], [La.] and similar declarations refer to plaintiffs.

  1. (1) there are currents in [V]äinameri(2) open water is closer to the places you referred to, and the ice is thinner.Proposal – let’s do as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag
  2. bloody shitheads…they bathe in money anyway thanks to that monopoly and State subsidies and have now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!
  3. good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!
  4. [little L.] go and drown yourself
  5. aha… [I] hardly believe that that happened by accident… assholes fck
  6. rascal!!! [in Russian]
  7. What are you whining for, knock this bastard down once and for all [.] In future the other ones … will know what they risk, even they will only have one little life.
  8. … is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he.
  9. “a good man lives a long time, a shitty man a day or two”
  10. If there was an iceroad, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port … instead, fcking monkey, I will cross [the strait] anyway and if I drown, it’s your fault
  11. and can’t anyone defy these shits?
  12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.
  13. wonder whether [L.] won’t be knocked down in Saaremaa? screwing one’s own folk like that.
  14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this.Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the state is powerless towards them – it is really them who govern the state), because they only live for today. Tomorrow, the flood.
  15. this [V.] will one day get hit with a cake by me.damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that … a pig is going to be slaughtered. no way
  16. bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!
  17. Estonian state, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas … and this cannot at all be compared to a ram’s Michaelmas. Actually sorry for [L.] – a human, after all… :D :D :D
  18. … if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed … will he [then] dare to act like a pig for the third time? :)
  19. fucking bastard, that [L.]… could have gone home with my baby soon … anyway his company cannot guarantee a normal ferry service and the prices are such that … real creep … a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year
  20. you can’t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the state and [L.] do not care about the people’s opinion) … just for fun, with no greed for money – I pee into [L.’s] ear and then I also shit onto his head. :)

Certainly, I would not describe any of these comments as great discourse. There are some here that threaten or encourage violence, are racist or otherwise offensive in a way that would cause me to remove them. But others don’t seem to objectively fit that categorization – at least 5, 6, 11, 16 and 19, which I would label as harsh, vulgar criticism. Legally speaking, you can’t refer to someone as an “a**hole”? I don’t allow people to use that word in my communities because I choose to have a higher level of discourse – not because the law forces me to do so. That’s an important difference.

Future Impact

“Today’s decision doesn’t have any direct legal effect,” TJ McIntyre, law lecturer and chairman of Digital Rights Ireland, told Ars Technica. “It simply finds that Estonia’s laws on site liability aren’t incompatible with the [European Court of Human Rights]. It doesn’t directly require any change in national or EU law. Indirectly, however, it may be influential in further development of the law in a way which undermines freedom of expression. As a decision of the Grand Chamber of the [European Court of Human Rights] it will be given weight by other courts and by legislative bodies.”

From an online community perspective, this is a plainly unfortunate ruling. I should be clear that I don’t think Delfi’s handling of these comments represents some great example of online community and moderation strategy. They didn’t do a great job – not even in 2006.

But that doesn’t change the fact that this judgment creates more problems than it solves – if it solves anything at all. Hopefully, with public attention and through advocacy, the impact of this ruling will be very limited.