The European Court of Human Rights: A judgement that wrecks free speech

The European Court of Human Rights has done itself no favours with bloggers by upholding an absurd  and  outrageous judgement making websites liable for any comment published on their sites.

As  I reported over a year ago the court had already ruled  that 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 meant 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 every single comment before it is published..

Now the grand chamber of the court has upheld this absurd decision – saying that it is up to professional bloggers to legally check any comment before it is public – effectively saying they should act like Mystic Meg in predicting whether any comment is offensive. Not surprisingly this has attracted a vehement response in the United States and Europe who see the ruling as dangerous and damaging to free speech. Both the respected Inforrm blog and a US website Techdirt have issued particularly harsh criticism.

Techdirt describes the decision as a disaster for free speech and the decision as ” absolutely crazy”.

The only exceptions to this ruling appear to  be internet forums and people who run their websites as non commercial ventures or as the judgement says ” as a hobby”. The only reason for this is evidently the judges thought people with hobbies shouldn’t be expected to have to employ lawyers to check their every move. But ” freedom of expression” should not be confined to those who have hobbies.

The main effect according to one of two dissenting judges would amount to :” an invitation to self-censorship at its worst.”

Luckily the UK has a Defamation Act that does the opposite – putting the onus on the people who post comments not the website and has procedures to sort out a dispute.

But it would only take one wealthy, vindictive person angered by a comment to go to the ECHR citing this judgement. And then we would in for a battle between British law and the European Court ruling.

Frankly if Michael Gove, the justice secretary, got hold of this judgement – he would have a good case to damn the court. And in this case he would be right.

New law to protect bloggers from defamatory comments on their sites

The government has just tabled draft regulations under the new Defamation Act to protect English and Welsh bloggers from being sued if people put up unwanted libellous comments on their websites.
I am indebted to Rupert Jones,a Birmingham barrister who specialises, among other things, in media law for drawing my attention to draft regulations which have been tabled by the Ministry of Justice. The regulations have to be debated by a committee of MPs and peers before becoming law. As far as I can see these regulations do not apply to Scottish or Northern Ireland websites.
From my reading as a journalist it allows bloggers 48 hours or two working days after a complaint has been received to contact the person who put up the comment and make a decision whether to take down the comment. It also allows – if both sides agree – for the person complaining about the comment to be put in touch with person who posted it.
For WordPress users like myself this is particularly good news. Under present arrangements I can moderate comments from new people who want to debate issues. But I cannot stop existing commentators putting up a new comment which is automatically published at the same time as I am alerted by WordPress.
Luckily all people commenting have to leave an email address – even if they are not using their real name – where they can be contacted.
The regulations also allow a ” get out” clause for websites carrying comments from people who cannot be traced – to remove the comment within 48 hours as a strong defence against anybody suing them for carrying an anonymous comment. There is also a lot of leeway for the courts to extend the 48 hour period to cover disputes.
All this is welcome news given my last report about the mad decision of the European Court of Human Rights to allow people to sue websites for comments from anonymous people even after they had taken them down.
Luckily I am told Britain does not have to follow the rulings of the European Court of Human Rights – unlike – and this has confused some people – the European Court of Justice, which is an EU institution.
These new rules – if followed by a website – will make it much more difficult for an intransigent complainer to win any libel action in the UK. And if they want to take it to the European Court of Human Rights they will have to go through the whole British justice system which will cost them a fortune.
So there is some good news to protect bloggers from comments they have never made.