EHRM grote kamer: Internetportal verantwoordelijk voor anonieme lasterlijke comments

EHRM 16 juni 2015, IEFbe 1378; Application 64569/09 (Delfi tegen Estonia) - video - persbericht
Nieuwsportaal Delfi werd verantwoordelijk gehouden voor de lasterlijke anonieme commentaren op een artikel over bestuurder bij een ferrymaatschappij. Het EHRM oordeelde eerder [IEFbe 503] dat er geen schending van de vrijheid van meningsuiting plaatsvond (10 EVRM) en het nieuwsportaal verantwoordelijk is voor commentaren op een artikel. De Grote Kamer oordeelt wederom dat er geen schending is van artikel 10 EVRM door het verantwoordelijk houden van een (van de grootste, Estse) internetportals voor de anonieme lasterlijke commentaren.

The Grand Chamber agreed with the Chamber’s assessment of the question which had identified four key aspects: the context of the comments; the liability of the actual authors of the comments as an alternative to Delfi being held liable; the steps taken by Delfi to prevent or remove the defamatory comments; and the consequences of the proceedings before the national courts for Delfi.(...)

Firstly, as regards the context, the Grand Chamber attached particular weight to the extreme nature of the comments and the fact that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. Moreover, as the Supreme Court had pointed out, Delfi had an economic interest in the posting of the comments. The actual authors of the comments could not modify or delete their comments once they were posted, only Delfi had the technical means to do this. The Grand Chamber therefore agreed with the Chamber and the Supreme Court that, although Delfi had not been the actual writer of the comments, that did not mean that it had no control over the comment environment and its involvement in making the comments on its news article public had gone beyond that of a passive, purely technical service provider.

Secondly, Delfi had not ensured a realistic prospect of the authors of the comments being held liable. The owner of the ferry company could have attempted to sue the specific authors of the offensive comments as well as Delfi itself. However, Delfi allowed readers to make comments without registering their names, and the measures to establish the identity of the authors were uncertain. Nor had Delfi put in place any instruments to identify the authors of the comments making it possible for a victim of hate speech to bring a claim.

Thirdly, the steps taken by Delfi to prevent or remove without delay the defamatory comments once published had been insufficient. Delfi did have certain mechanisms for filtering hate speech or speech inciting violence, namely a disclaimer (stating that authors of comments were liable for their content, and that threatening or insulting comments were not allowed), an automatic system of deletion of comments containing a series of vulgar words and a notice-and-take-down system (whereby users could tell the portal’s administrators about offensive comments by clicking a single button). Nevertheless, both the automatic word-based filter and the notice-and-take-down system had failed to filter out the manifest expressions of hatred and blatant threats to the owner of the ferry company by Delfi’s readers and the portal’s ability to remove offending comments in good time had therefore been limited. As a consequence, the comments had remained online for six weeks. The Grand Chamber considered that it was not disproportionate for Delfi to have been obliged to remove from its website, without delay, clearly unlawful comments, even without notice from the alleged victims or from third parties whose ability to monitor the Internet was obviously more limited than that of a large commercial Internet news portal such as Delfi.

Finally, the Grand Chamber agreed with the Chamber that the consequences of Delfi having been held liable were small. The 320 euro fine was by no means excessive for Delfi, one of the largest Internet portals in Estonia, and the portal’s popularity with those posting comments had not been affected in any way – the number of comments posted had in fact increased. Registered comments are now a possibility but anonymous comments are still predominant, with Delfi even having set up a team of moderators for their follow-up. Furthermore, the tangible result for Internet operators in post-Delfi cases before the national courts has been that they have taken down offending comments but have not been ordered to pay compensation.

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