ANYONE working online should be worried about a recent judgement in the European Court of Human Rights, which threatens those running reader comments.
by David Banks
The case is a seemingly obscure defamation action in Estonia, where a director of a ferry company sued Delfi, one of the main news sites there.
Delfi had carried a story about the ferry company damaging ice roads used between the mainland and islands, which meant people had to use the ferries. The reader comments were pretty savage and some of them defamatory. Delfi removed the comments as soon as they received a legal complaint from the ferry director, some six weeks after they were posted.
The director won his defamation action and Delfi appealed to the ECHR. The ECHR rejected the appeal and there are some very worrying aspects to their judgement.
As online publishers we have always been able to rely on ‘notice and remove’ as a defence for reader comment and other UGC. So long as you do not pre-moderate such content in any way, you are not liable for defamatory content if you remove it as soon as you are notified that it is there.
Here though, the court said that Delfi ought to have predicted this story would attract defamatory remarks and taken greater care to police this discussion thread.
Furthermore, because Delfi allowed anonymous comments, the court decided, that meant that if defamatory comment was placed on their site they had a greater obligation to remove it, because the originator could not be tracked and held liable themselves.
Now, before we panic and close down our discussion threads, it should be noted that the ‘notice and remove’ defence we are used to using is enforced through a directive of the European Court of Justice in the European Union, not the European Court of Human Rights. So here in the UK we still ought to be safe so long as we remove when notified of libellous material.
But it is worrying that a very senior court should express this line of thinking. If it were followed by other courts one can imagine the workload it would place on busy news sites trying to predict which threads would attract the most defamatory content.
Publishers should also be aware that in the Defamation Act 2013, the section 5 online publishers’ defence, puts into UK law the ‘notice and remove’ practice – but only if you are able to tell the claimant who the originator was. It does appear that courts and legislators are cracking down on the practice of anonymous comment.
This raises some real issues for publishers as to how users register with them. You need to be ready for this, and other problems, when the Defamation Act comes into force, probably in summer 2014.
This will be covered in the workshop I will be running for NUJ Training Wales on 12 November in Cardiff.
David Banks, Media Law Consultant and Trainer