New Intermediary Liability from the Court of Human Rights, What will they mean in the real world? – Daphne Keller

19 04 2016

DelfiLast summer, the Grand Chamber of the European Court of Human Rights (ECHR) delivered a serious setback to free expression on the Internet. The Court held, in Delfi v. Estonia, that a government could compel a news site to monitor its users’ online comments about articles.

This winter, a chamber of the Court’s ruled the other way in MTE v. Hungary – holding that a very similar order violated the guarantee of free expression under the European Convention on Human Rights (the Convention). Did anything really change?

In a series of four posts, I will take a practical look at the cases and their real-world impact.  The posts will cover

(1) What the cases say (that’s this post)

(2) How the cases may affect intermediaries’ notice and takedown operations,

(3) How the cases may affect litigation in the EU, and

(4) How the cases may affect policy debates about platform liability under the EU’s Digital Single Market initiative.

First, let’s look at the rough upshot of the two rulings: News portals can be compelled to monitor user comments for hate speech and direct threats, but not for less harmful tortious speech.

The first case, Delfi v. Estonia, involved threats and anti-Semitic slurs in the user comments section of Delfi, an Estonian online newspaper. Estonian courts held, and the ECHR in 2015 affirmed, that the platform could be liable for those comments – even though it knew nothing about them and had a solid record of removing unlawful comments as soon as it found out about them. The key question to the ECHR was whether this outcome violated fundamental rights under the Convention – the equivalent of a constitutional challenge to a ruling in the US.

The news site argued that strict liability for user comments, and the de facto monitoring obligation it created, violated the fundamental rights to seek and impart information under Article 10 of the Convention. The Court found no such violation. It rejected arguments that requiring news sites to continuously police and delete users’ comments would lead them to over-police or simply shut down user forums, with resulting harm to fundamental rights.

As the Court emphasized several times, its conclusion was specific to this particular defendant as a commercial news provider, and the law may be different for other Internet hosts. Notably, given the ECHR’s role as adjudicator of the Convention, it was not called on to interpret applicable EU or national law. That means the ruling does not rest on the EU’s eCommerce Directive, which says that protected Internet hosts cannot be compelled to undertake “general” monitoring.

In the newer case, MTE v. Hungary, the Court’s lower chamber goes the other way on nearly identical facts. Defendants included a news portal that, like Delfi, honored removal notices but didn’t actively police all of its users’ comments. Hungarian courts held the portal liable for reputational harm to a business caused by “false and offensive” user statements. The ECHR disagreed. It said that compelling the platform to find and remove every unlawful user comment “amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet[.]” Accordingly, the Hungarian court’s ruling violated Article 10 of the Convention.

MTE reached this conclusion after politely working through the rather indeterminate list of factors identified in Delfi: Context of Comments, User Liability, Measures Taken by the Platform, and Consequences of Ruling for the Platform. The real crux of the ruling, though, was that the user comments at issue in MTE were not as bad as the ones in Delfi – they were not hate speech or direct threats. (P. 91) Accordingly, they were not dangerous enough to justify the risks that a monitoring requirement would pose for free expression. The Hungarian court’s error, said the ECHR, was that it

paid no heed to what was at stake for the applicants as protagonists of the free electronic media. They did not embark on any assessment of how the application of civil-law liability to a news portal operator will affect freedom of expression on the Internet.

Following MTE, a court that ignores these rights in an intermediary liability case may violate the Convention.

The MTE ruling is a huge step forward on a policy level. The Court explicitly recognizes that regulating expression and information platforms means regulating their users’ expression and information access. The ruling’s core insight is that “intermediary liability” laws directly affect the rights of ordinary Internet users, and can make or break their ability to speak and find information online.

But the ruling’s value may lie entirely in the policy and litigation arena. It’s not clear what, if anything, it will do to protect users’ online expression as a practical matter.

The second post in this series will consider the ECHR cases’ practical impact for intermediaries operating in Europe

This post originally appeared on the blog of the Centre for Internet and Society and is reproduced with permission and thanks.


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