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It'll Cost Much More Than 5,000 Kroon to Rescue Unchecked Online Comments

The European Court of Human Rights has ruled that websites on that continent can be responsible for their commenters' over-the-top statements. Beware, rest of the world.
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Since you’re reading this online, it’s almost certain that you already know that online comment sections often are a very scary cyber-neighborhood. Most neighborhoods aren’t patrolled at all, and justice for someone wronged, if it ever comes, merely amounts to having an offending comment removed. And if the wrong reaches a civilly actionable threshold, you can win by suing the website (usually) and good luck tracking down "Troll37" who posted anonymously.

A Thursday ruling from the European Court of Human Rights is itself nasty reading for websites, finding that they can be legally responsible for the crude—but not criminal—words of their readers. That’s not the case in the U.S., but as in the case of libel tourism, the Web has little respect for borders.

Writing at Index on Censorship, Padraig Reidy fears that the judgment is bad news for free speech, calling it an “alarming judgment ... that could seriously affect online comment threads.” He argues the decision now sets the precedent that websites are responsible for their commenters excesses and that they may be more liable by actually having a commenting policy. Plus, if your commenters can be anonymous, know that when punishment time comes, you—the website—aren’t.

The suit concerns some not-nice comments aimed at an Estonian ferry company posted under an article about the company changing its routes to two Baltic islands. Those new routes severed some ice roads, raising the hackles who of those who preferred that cheaper wintertime connection, and they lodged their complaints in the time-honored Internet way—using snark, derision, ad hominem attacks, bad language, general defamation, and a touch of anti-semitism (it is the Web, after all).  The 20 comments in question are contained in the case file here; to these jaded eyes most look pretty routine. But not to the now-infuriated ferry company, which sued the news service Delfi (take a look at their Estonian portal here), and not the rude commenters, for defamation. The ferry company won the case.

Estonia’s version of the first amendment, by the way, is Article 45. It reads:

(1)  Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for state and local government public servants, to protect a state or business secret or information received in confidence, which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice.

(2)  There is to be no censorship.

However, it can compete with Article 17:

No one’s honour or good name shall be defamed.

How to mediate between the two? Try Article 19, which might be termed the “civility clause:”

(2)  Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties.

The ferry company’s victory, while probably sweet, was also small, and Delfi could have rolled with a settlement of a mere 5,000 kroon (that’s $426.25 in U.S. terms). The court, apparently unaware of the principle of principle, suggested Delfi should have just settled because, hey, it was only 5,000 kroon. But Delfi, a major player in the Baltic news biz, had stood on principle before, weathering a 2006 bid by the Estonian parliament to censor anonymous Web comments. This time, citing a European Union directive that holds Internet service providers harmless for comments, the publisher first appealed to Supreme Court of Estonia, lost there, and appealed to the European Court of Human Rights, which is a higher court, sorta, than Estonia’s highest court. Delfi lost there, too.

Given the outcome in Strasbourg, it might have been better if Delfi had weaseled in Tartu. The European-wide court rejected just about every point Delfi raised, setting some rather unfriendly precedents:

• Since freedom of expression isn’t absolute under the European Convention on Human Rights (nor, as we saw, Estonia’s constitution), it was the jurists’ decision that the comments crossed that faint line that jurists are charged with seeing: “Given the nature of the article, [Delfi] 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.”

• Delfi’s posted comment policy said it would take down threatening or insulting comments—and it had filtering software and a reader flagging system to boot—but the comments “were not removed in good time.”

• Yes, the ferry company could have sued the people who actually made the comments, but that would have been difficult since many posted anonymously. “Making Delfi legally responsible for the comments was therefore practical; but it was also reasonable, because the news portal received commercial benefit from comments being made.”

• And jeez, the settlement was only 5,000 kroon, and without stipulation about how to protect third-party rights in the future. (That you could get sued for and lose for crossing a nearly invisible line apparently did seem to impress the court, but that’s par for the course in freedom of expression cases.)

In the United States, websites and Internet service providers are legally excluded from liability for their commenters’ excesses. According to the Communications Decency Act, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.", which monitors the climate of Internet expression, says that even if something is beyond the pale, websites don’t have to take it down:

No, they are not required to delete. 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.

Of course, there’s also a moral case about responsibility that can be made. “Businesses that run cruise ships have to buy life preservers. Companies that sell alcohol have to keep it away from kids,” blogger Anil Dash wrote in 2011. “And people who make communities on the web have to moderate them.”

People of good will could come down in support of either side of holding websites legally responsible for their readers’ rants. While it's pretty clear I see the European court's ruling as bad, I have to admit there are times I look at online comments and despair for humanity.

And while rightish Americans bridle at the idea of European legal rulings, much less European courts, infiltrating their sterling legal principles, it's funny how in some quarters other place's rulings that restrict rights seem more appealing than rulings that advance them. (And yes, in other quarters the opposite is also true.)

Despondency aside, I will make several predictions about this ruling should it become final (one more appeal is possible). Publishers, wishing to spend their time publishing and not litigating, will take the path of less resistance and start pulling back on commenting. Popular Science, for mostly but not entirely unrelated reasons, recently stopped logging reader comments. I can see other sites following suit. The result will be a much nicer Internet—and much less robust debate.