Regulations governing the new defence for operators of websites which incorporate user-generated content have recently been approved by both Houses of Parliament.
The defence is set out at section 5 of the Defamation Act 2013 which, together with the Regulations, are to come into force on 1 January 1 2014.
The new defence will apply if the operator of a website can show that it did not post the defamatory statement on the site. In other words, the comment must be posted by a third party - for example, a reader of the website.
However, the section 5 defence will only work if the complainant is able to identify the author of the statement on the website. In situations where this is not possible – perhaps because the author has posted anonymously or used a pseudonym – the operator will not be able to continue to rely on the section 5 defence if the claimant can show that:
(1) he complained in the proper manner to the sites operator; and that
(2) the operator failed to respond to the complaint in the way detailed in the regulations.
In any situation where it transpires that it is not possible to identify the poster or where he is unwilling to deal with the matter directly, the operator must then remove the material complained.
It is hoped that the process will help to enable complainants to resolve their concerns with the poster of the defamatory material directly.
The process will not be compulsory, and operators will still be free to remove a statement immediately on receipt of a complaint if they elect to do so.
The announcement setting out when the new regulations will come into force comes at a time when the liability of website operators for comments posted by third parties has been thrown into question following a case recently heard by the European Court of Human Rights (ECHR). The judgment handed down in Delfi AS v. Estonia (no.64569/09) confirmed that an Estonian court was right to fine a news website for anonymous comments posted by its readers in response to one of its stories has certainly caused something of a furore.
It has been described as “truly troubling judgment for website operators and moderators” and as “the judgment which should send a shiver of fear down any website operators spine.”
The concern for website operators is that the decision may set a precedent whereby websites will, in future, be held responsible for such comments some of which, as is often the way with the internet, can be particularly scathing. As a consequence, it is feared that website owners will ultimately decide against incorporating such features on their websites - thereby restricting freedom of speech.
The case in question concerns a news article published in January 2006 by Delfi, one of Estonias largest news portals, which publishes upwards of 300 news articles per day. The piece in question was about a ferry company which controversially changed its routes, damaging paths for mooted ice roads. The ice roads were to be a cheaper alternative to ferries and their opening was delayed by several weeks as a result of the damage. The comments section below the article was soon filled with a stream of offensive and threatening comments, most of which were made anonymously, aimed at the company’s majority shareholder referred to in the judgment as “L”.
Upon request from L’s lawyers, Delfi accepted the comments were defamatory and removed them as soon as they received that complaint. However, by that time they had been online for six weeks. L brought proceedings against Delfi. In June 2007, L was unsuccessful at first instance as the county court judge found that Delfi was protected by the Estonian equivalent of the E-Commerce Directive hosting defence. This precludes liability for information stored by providers which do not have knowledge of the information, or act expeditiously to remove it once they do. It was held that Delfi could not be considered a publisher of the comments and furthermore, in accordance with national implementation of Article 15 of the Directive, that there was no obligation to monitor them.
In October 2007, the Estonian Court of Appeal quashed the county court judgment on hosting protection and referred the case back to the first instance court for new consideration. In June 2008, the county court duly found for L stating that Delfi was to be considered a publisher of the comments some of which were held to be vulgar, humiliating and defamatory. L was awarded 5,000 kroons (€320).
In December 2008, the case returned to the Court of Appeal where the county court’s decision was upheld and in June 2009, the Estonian Supreme Court dismissed a further appeal from the news site.
European Court of Human Rights
Delfi appealed to Strasbourg arguing that the domestic Estonian courts had placed an unlawful limitation on its right to freedom of expression. However, the ECHR clarified from the outset that its role was not to interfere with the domestic courts or to resolve problems of interpretation of domestic legislation. Its role, it went to lengths to point out, was exclusively to determine whether Delfi’s Article 10 rights had been infringed.
The Court was therefore faced with evaluating whether Delfi’s Article 10 rights had been infringed against the already established notion that it should be considered a publisher of the readers’ comments. As a publisher, the news portal was therefore always going to have some form of fundamental responsibility for what its readers had posted – a responsibility it would not have had it if was merely an intermediary. So, from that perspective, Delfi was effectively fighting to assert its Article 10 rights with one arm tied behind its back.
Even so, against this backdrop, the ECHR commented upon several factors which prompted it to come to the conclusion that the company’s Article 10 rights had not been infringed. These included the following:
1) Delfi could have realised that the article might cause negative reactions and that there was therefore a higher than average risk that the negative comments could go beyond the boundaries of acceptable criticism.
2) Delfi’s word-based filter was considered not to have been sufficient to prevent harm being caused to third persons.
3) Delfi was “in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and above all, to take technical or manual measures to prevent defamatory statements from being made public.”
4) The ECHR also held that Delfi “exercised a substantial degree of control over the comments” as posters could not modify or delete their own comments.
Some of the comments made by the court, however ill-founded, could yet be considered wide enough to have general application in similar future cases. The fact that the decision was unanimous makes the judgement even more astonishing.
A further key issue for the ECHR appeared to be the fact that readers could leave comments on the news portal anonymously. The Court considered that it would be “very difficult for an individual to establish the identity of the person to be sued” and that “for purely technical reasons it would appear disproportionate to put the onus of identification of the authors of defamatory comments on the injured person in a case like the present one”.
These are problems which the new section 5 defence seeks to address. Whilst it will not put the onus on of identifying potential defendants on the claimant, it puts a system in place that at least opens up the opportunity of direct communications between the parties rather than placing all decision making responsibilities on the shoulders of the website operators. This should prove to be a valuable process which, by removing the obligation upon a website operator to immediately remove user generated content upon notice in order to avoid liability, it is an important step in favour of freedom of expression.
In terms of the effect of Delfi and the repercussions of a ruling which seems to entirely fail to appreciate the purpose of the ECD’s provisions relating to hosting liability, commentators are split. Whilst the decision in the ECHR looks somewhat ominous at first glance, it is unlikely to set the dangerous precedents that many appear to be predicting.
As Delfi was based on the assumption that Delfi was a publisher, the judgement is unlikely to have any effect on genuine online intermediaries. Perhaps it would have been better if the Court had stated that whilst it was reluctant to interfere with the Estonian courts’ domestic findings, it had nonetheless stated whether it considered Delfi to be a publisher or an intermediary and then went onto consider the company’s Article 10 rights with that distinction in mind. However, even without this clarification, there is little chance that this case will affect how websites in the UK continue to accept and deal with reader comments.
If Delfi was a UK company, it could have confidently relied upon the Electronic Commerce Regulations 2002 - the UK’s own implementation of the e-Commerce Directive. This has been successfully used in the past to protect intermediaries from exactly the same issues as the company was facing here. English companies have cases like Godfrey v Demon Internet and Kaschke v Gray & Hilton which state that removal on notice provides a defence to those who offer online comment facilities.
Unfortunately for Delfi, the Estonian courts had held that the intermediary defence was not available and this, crucially, is where the problems appear to have started. In refusing to pass judgment on the national court’s decision to prevent Delfi from relying on the national implementation of the e-Commerce Directive, there was therefore no judgment given on EC law. So the question as to whether a company will be liable for defamatory comments left by readers will remain a question for English courts and their own interpretation of the Directive. Given the English courts’ established position on this matter, there is no reason to suggest the courts will start to disregard their own previous rulings on such matters and this particular ruling will not have any effect in this regard.
Whilst the ECHR's decision to uphold a ruling which appears to contradict what many believed to be a relatively settled area of law sounds like a cause for concern, the case relied on a series of specifics – particularly what seems to be a misguided decision by the Estonian courts – that will almost certainly mean that this will be a one-off case decided upon its own facts. There is every possibility that the decision will be reversed if Delfi elects to make a final appeal to the Grand Chamber but, in any event, it is unlikely that the shockwaves resulting from this decision will reach any further than the courtroom in which the case was heard.
UPDATE 18 FEBRUARY 2014
The European Court of Human Rights Grand Chamber Panel has referred the case to the Grand Chamber at the request of Delfi AS.