I am not one of those people who is by nature anti the European Court of Human Rights but a judgement reported on the authoritative Inforrm blog has made my blood boil.
Judges have made the extraordinary decision to hold news sites and blogs legally responsible for all the comments put up on their site even if they take them down after a complaint.
Effectively it means that any offended party can pursue a news organisation or blog for any defamatory comment made about them EVEN after it has been removed from the website.
The ruling follows a dispute after a said to be respected Estonian news organisation,Delfi,ran a piece about a ferry company making controversial changes to its routes. The changes to remote Estonian islands attracted widespread criticism including an attack on their owners from anonymous bloggers who put comments on the site. A major shareholder in the company took offence at the comments and decided to sue. The website took them down but the owner decided to pursue the site – not the commentators – saying it should be legally responsible for checking everything before it was published.
The report on Inforrm says: “The decision…sets a deeply worrying precedent for freedom of expression in several respects. It also displays a worrying lack of understanding of the issues surrounding intermediary liability and the way in which the Internet works. All the more disturbing is that the Court’s decision in this case was unanimous (although tellingly several judges sitting in the Chamber came from non-EU countries, namely Azerbaijan, Macedonia and Russia, and an EU-newcomer, Croatia).
I would add that Russia and Azerbaijan are not known as beacons for free expression and debate.
It adds:”The Court also made a number of worrying statements, including the suggestion that Internet news portals should realise that their articles might “cause negative reactions”, some of which might go beyond the bounds of acceptable criticism and that therefore they should be prepared to take the necessary measures to avoid liability. For anyone familiar with the way in comments online operate on news sites, this is laughable. The vast majority of public interest news will almost by definition stir debate and attract comments of all kinds, including offensive ones. While it may be appropriate for those sites to remove insulting comments upon notice in accordance with their house rules, what the Court is suggesting is that internet news portal have knowledge of illegal content on their platforms ‘by default’ and should take steps to prevent their publication or be prepared to face the consequences. Short of all out private censorship, the upshot of the Court’s judgment is that news portals should close their comment section to avoid liability.”
Can you imagine websites like Guido Fawkes which are full of lively, offensive and often insulting comments being forced to employ lawyers to check every comment before daring to publish. Or even on this blog which deals with meaty subjects like child sexual abuse and political corruption being expected to censor every view in case someone was offended.
This is extremely bad news from Estonia and Strasbourg and is a victory for countries that believe more in repression than free debate. It also I am afraid suggests that many judges are totally out of touch with the role of the internet and its role in encouraging unfettered debate. If it prevails – it can be appealed – it takes us back to the elitist old world of the printed word – where the editor just accepted a few letters for publication and all the news stories were published without anybody being able to challenge or comment.