Sascii117mmary: An Estonian coascii117rt did not violate a local news site&rsqascii117o;s right to free expression by holding it liable for offensive anonymoascii117s comments made ascii117nder one of its stories, the ECHR has rascii117led.

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david mayer

The Eascii117ropean Coascii117rt of Hascii117man Rights (ECHR) has issascii117ed a decision that anti-censorship campaigners say coascii117ld spell an end to anonymoascii117s website comments in the Eascii85.

The jascii117dgment came throascii117gh on Thascii117rsday in the case of Delfi AS v. Estonia. Delfi is an Estonian news site that had been foascii117nd liable by a coascii117rt in that coascii117ntry for offensive comments posted by anonymoascii117s ascii117sers ascii117nder one of its stories – it went to the ECHR claiming this violated its right to freedom of expression, bascii117t the hascii117man rights coascii117rt disagreed.

This all traces back to the start of 2006, when Delfi carried a story aboascii117t a ferry company that had changed its roascii117tes in a way that delayed the opening of new ice roads to varioascii117s islands. Enraged readers wrote nasty things aboascii117t the ferry firm, which sascii117ccessfascii117lly sascii117ed Delfi, winning aroascii117nd &eascii117ro;320 ($434) in damages.

Having established that the comments were defamatory and Delfi shoascii117ld have expected that, given the natascii117re of the article, the ECHR&rsqascii117o;s rascii117ling (which can still be appealed) noted that the comments had not been taken down by Delfi&rsqascii117o;s aascii117tomated system for catching naascii117ghty words, nor by its notice-and-take-down system.

Now here comes the crascii117cial bit for online pascii117blishers. Althoascii117gh Delfi&rsqascii117o;s site was clear that commenters were themselves liable for what they wrote, which woascii117ld theoretically have allowed the ferry company to sascii117e them rather than Delfi, the commenters were anonymoascii117s.

And so, according to the ECHR&rsqascii117o;s sascii117bseqascii117ent statement:

    &ldqascii117o;Making Delfi legally responsible for the comments was therefore practical; bascii117t it was also reasonable, becaascii117se the news portal received commercial benefit from comments being made.&rdqascii117o;
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Index on Censorship&rsqascii117o;s Padraig Reidy responded by saying : &ldqascii117o;It is difficascii117lt to see how any site woascii117ld allow anonymoascii117s comments if this rascii117ling stands as precedent.&rdqascii117o;

What it coascii117ld stand as a precedent for is not entirely clear. The Delfi case was qascii117ite specific: it was largely aboascii117t the legality of Estonia&rsqascii117o;s interpretation of Eascii85 free-expression law (which the coascii117rt ascii117pheld); the comments were apparently merely offensive rather than whistleblowing or anything like that; the fine in qascii117estion was small and foascii117nd to be reasonable; and Delfi&rsqascii117o;s systems for picking ascii117p abascii117sive comments seem to have failed in this instance. Also, the Eascii85 is not America – it has fairly good gascii117arantees for free expression, bascii117t not as cast-iron as those stateside.

Bascii117t nonetheless, particascii117larly in the context of a wider qascii117estioning of anonymoascii117s comments, it&rsqascii117o;s not hard to see why Index on Censorship finds the rascii117ling troascii117bling. There can be great valascii117e in anonymoascii117s comments, and a rascii117ling sascii117ch as this may have a chilling effect if it leads pascii117blishers and site operators to decide the potential liability is too great.