[SpicyIP Tidbit] ECtHR on News Portals – do they intermediate comments, or do they control them?

In a fascinating albeit disquieting decision, the Grand Chamber of the European Court of Human Rights found Delfi AS, a news portal, liable for the unlawful comments posted on its website by third parties – despite the fact that the comments were removed as soon as Delfi was notified about them. We have dealt with issues of intermediary liability before, in our posts here, here, here, here and here, highlighting the importance of intermediary liability for freedom of speech on the internet. Live Law has an excellent summary of the case here (Quick note; since Indian media coverage in this area isn’t always the best, it’s great to see that Live Law has picked it up almost immediately!).

Delfi, the applicant in the case, is a news portal with up to 330 publications per day, and a substantial amount of national and international traffic and readership. Delfi had established a robust and responsive notice-and-takedown system for the removal of unlawful comments, with automatic deletion of comments in case they contained obscene terms, and a set of ‘Rules of Comments’ for the same.

Despite, the above, the ECtHR held that Delfi was itself not an intermediary, as it “has integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments [hinnangud] and opinions (comments).” The Court places stress on the fact that the news portal invited comments, drawing a link between the number of comments and Delfi’s revenue, finding that Delfi had an economic interest in the comments. Furthermore, and crucially, the Court specifically notes that while Delfi enacted rules for the comments and could make changes to them, including their removal, the author of the comment itself could not edit their comments, or delete them (as Chinmayi Arun quickly noted on Twitter here). The author, contrarily, could only report an inappropriate comment.

This is a sort of arrangement that I believe is rather rare in online portals (if any of our readers have any information to the contrary, please do comment!). The ideal legal norm for ‘intermediaries’ is that they simply provide a platform, on which the users are free to do whatever they wish to, within technical limits. Delfi’s commenting system differs from this, effectively transferring control of the content of the comments entirely to Delfi hands as soon as they are posted. It is on this fascinating basis that the Court concluded that Delfi had final control over the ‘publishing of comments’ as a whole, to a degree beyond that of an ‘intermediary’ which could be precluded from liability (services ‘merely of a technical, automatic and passive nature’).

This decision has arguably rightly been criticised as a severe blow to free speech due to the effect it will have on the protections for the same under EU law, as Article 19 summarises here. But at the same time, the reasoning employed by the Court herein is also arguably sound. The true consequences of this decision, then, will depend on how future domestic and international courts interpret it, and how the line between ‘Control’ and ‘intermediation’ is demarcated. This decision, then, marks a crossroad between ‘free speech’ and ‘censorship’, the evolution of which should be fascinating at its best, but quite possibly dire at its worst.