Removing internet comments under consideration by the European Court of Human Rights

The Grand Chamber of the European Court of Human Rights in Strasbourg ruled the liability of websites for the content of comments posted thereon by readers is in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and does not violate Article 10 thereof (regarding the freedom of expression).

Article 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The case began in 2006 when an Estonian website “Delfi” (http://www.delfi.ee/) published an article dealing with ferry transport services. The article attracted numerous comments, but some of them contained threats, swear words and generally “offensive language”. As a result of the above, the ferry company requested Delfi remove the comments in question, but the website reacted only after 6 weeks. Thus, the matter found its way to the Estonian courts that finally ruled that Delfi shall be held liable.

Delfi, however, decided to refer the case to the European Court of Human Rights. Unfortunately for Delfi, it was all in vain because the Grand Chamber of the Court ruled that expecting the website to intervene in the freedom of speech of commentators falls in compliance with the aforementioned Article 10 of the Convention. In the opinion of the Court, there are certain aspects to the case that influenced the ruling. First of all, the comments contained hate speech and called for violence. Moreover, Delfi was capable of deleting them. Further, the Grand Chamber determined that it would be difficult to hold anonymous commentators liable. Not insignificant for the Court was also a glaringly low amount of compensation decided in favor of the ferry company from (about 320 Euro).

The Court also stressed the judgment concerns only imposing liability on commercial websites for non-deleted comments of readers and does not delve into whether freedom of expression of readers was infringed. The Court, however, is of the opinion that deleting hate speech and groundless accusations does not infringe or limit the freedom of speech.

The Court’s ruling constitutes a valid argument in the discussion on the future changes in the law in the scope of Act on Provision of Services by Electronic Means and the phenomenon of content hosting itself. It does not, obviously, affect the rights and obligations of web hosting providers, the injured parties or authors of posts and comments in the Internet (as covered in Poland by the Act on Provision of Services by Electronic Means), but it visibly shows the entire spectrum of possible legal solutions. In the discussion on the liability of website owners (e.g. magazines), it was argued multiple times that moderation and deletion of comments or posts would be contrary to the freedom of expression and the freedom of speech. However, the Court – known for protecting in its decision-making the broadly defined freedom of speech, i.e. also the freedom to express critical, difficult or highly controversial opinions – approved of the obligation to remove certain content from websites, especially when the matter involves hate speech in the net.

Judgment of the European Court of Human Rights in Strasbourg of June 16, 2015 in the case of Delfi AS v. Estonia (file no.: 64569/09).