Wednesday, 16 October 2013

Who will sort out the Delfi mess?

[Updated 18 June 2014.  Decision is now under appeal to the Grand Chamber. Intervention submissions will be referenced here as and when known:

1.  Media Legal Defence Initiative - submission (PDF).
2. European Information Society Institute - submission (PDF)
3. ARTICLE 19 - Submission (PDF)]

The European Court of Human Rights (First Section) has found that there was no violation of Article 10 ECHR (freedom of expression) when the Estonian courts held a news website, Delfi AS, liable for defamatory statements by readers using the site’s article comments facility.

The Court’s approach to the responsibilities of internet publishers appears to challenge the principles underpinning the intermediary liability provisions of the EU ECommerce Directive.  The Court declined to question the Estonian courts’ narrow interpretation of the ECommerce Directive, even though it was in almost all respects at odds with subsequent EU Court of Justice decisions cited to the Court. 
The result is a mess of epic proportions, which it is to be hoped the Grand Chamber will have the opportunity to sort out if an appeal reference is made. [Yes. A reference was made and accepted.]  Failing that a pending reference to the CJEU in a Cyprus case, Papasavvas, may enable the EU Court of Justice to weigh in. 

The internet news site Delfi published up to 330 articles a day.  As is now common on newspaper sites, the website had an ‘add your comment’ section at the end of each article.  The comments were not routinely moderated, although there was evidence that on some occasions the site had proactively removed comments.  Comments containing certain obscene words were automatically deleted.  There was a notice and takedown facility for victims of defamatory comments.  Any reader could mark a comment as abusive and it would be taken down expeditiously.  About 10,000 comments a day were posted, the majority under pseudonyms.  Once a reader posted a comment s/he had no further ability to amend or remove it.  
185 comments were made about a particular article on the day of publication and the following day.  Six weeks later Delfi received a complaint about 20 of them from the claimant’s lawyers and removed those comments on the same day.

The claimant then sued Delfi for damages for defamation. The first instance county court found in June 2007 that the news site was protected by the Estonian implementation of the ECommerce Directive hosting protection.  Delfi could not be considered a publisher of the comments and had no obligation to monitor them. (The latter reflects Article 15 of the ECommerce Directive, which prohibits Member States from imposing general monitoring obligations on conduits, caches and hosts.).
In October 2007 the Tallinn Court of Appeal allowed an appeal on the applicability of hosting protection and remitted the case back to the county court, which duly found that hosting protection did not apply.  It went on to find that the news site was a publisher and had not fulfilled its responsibilities under the Estonian Obligations Act. Certain of the comments were found to be defamatory.  The news site was held liable for them and ordered to pay EUR320 damages. 

In December 2008 the case returned to the Tallinn Court of Appeal, which upheld the county court decision.  In June 2009 the Estonian Supreme Court dismissed Delfi’s further appeal.  It upheld the lower courts’ interpretation of the hosting provisions of the ECommerce Directive. Its decision, as reported by the ECtHR, was that:
“an information society service provider, falling under … the Directive on Electronic Commerce, had neither knowledge of nor control over information which was transmitted or stored. By contrast, a provider of content services governed the content of information that was being stored.  
In the present case, the applicant company had integrated the comment environment into its news portal and invited users to post comments. The number of comments had an effect on the number of visits to the portal and on the applicant company’s revenue from advertisements published on the portal. Thus, the applicant company had an economic interest in the comments.
The fact that the applicant company did not write the comments itself did not imply that it had no control over the comment environment. It enacted the rules of comment and removed comments if the rules were breached.
The users, on the contrary, could not change or delete the comments they had posted; they could merely report obscene comments. Thus, the applicant company could determine which comments were published and which not. The fact that it made no use of this possibility did not mean that it had no control over the publishing of the comments.”
This judgment pre-dated the CJEU decisions in both Google France v LVMS (23 March 2010) and L’Oreal v eBay (12 July 2011).  Those decisions have elaborated and clarified the scope of the hosting protection, in particular the circumstances in which a commercial operator may be regarded as a host. 

It is difficult to conceive that the Estonian Supreme Court could have approached the position of Delfi in the same way had those decisions been available in 2009 at the time of its judgment.  The CJEU decided that:
-         The role played by the service provider must be neutral, in the sense that the service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored.

-         Google was capable of being a host in relation to the content of advertisements submitted by users of its keyword advertising services.  In particular:

o   Concordance between the keyword selected and the search term entered by an internet user was not sufficient of itself to fix Google with knowledge of, or control over, the data entered into its system by advertisers.

o   Remuneration (and thus the existence of an economic interest in the relevant content) did not preclude hosting status.

o   Neither did controlling the order of display of advertisements according to remuneration, setting payment terms, or providing general information to clients.

-         eBay was capable of being a host in relation to offers by sellers of goods on its online auction platform

o   But where it provided assistance to sellers by, in particular, optimising the presentation of the offers for sale in question or promoting those offers, that would amount to an active role in relation to those offers for sale.
In the light of these two decisions most of the grounds apparently relied upon by the Estonian Supreme Court to hold Delfi not to be a host would not now be permissible.  Integration into a non-intermediary environment is no bar to hosting protection.  An ‘invitation’ to post comments (by having an ‘add your comment’ box) implies no closer control or lesser neutrality than either Google or eBay manifested in relation to keyword advertising or online sellers. An economic interest in the volume of information provider by users is not a bar.  Neither is setting rules for users.    
eBay also establishes that it is wrong to approach hosting protection as a broad overall status.  It applies to specific activities at a granular level.  So acting non-neutrally in relation to some user content does not affect hosting protection for other user content for which neutrality has been maintained.  Individual decisions by a news site to moderate or remove some reader comments therefore cannot be relevant to consideration of the availability of hosting protection for unmoderated comments.
Only the inability of the user in the Delfi case to withdraw the comment remains as a novel point, albeit one that on the wording of the Electronic Commerce Directive itself appears to have little merit.
The ECtHR was thus faced with making an Article 10 evaluation of the consequences of what was most likely to have been an impermissibly narrow interpretation of the ECommerce Directive hosting protections.
The ECtHR declined to step into EU law territory and determine whether that interpretation was correct.  Although it heard argument on the Google France and L’Oreal v eBay cases, the Court said that it was not its role to take the place of the domestic courts, but only to determine whether in the result Delfi’s Article 10 rights had been infringed. According to the Court they had not.
The trouble is that once the Court accepted the Estonian courts’ view that Delfi was not an intermediary, the die was cast. The Court’s subsequent Article 10 analysis rests on the suspect basis that Delfi was a publisher of the readers’ comments and thus had some primary responsibility for them, rather than was acting qua intermediary in relation to them.
Yet that suspect characterisation of Delfi’s activity is the very reason why the national court found it liable.  How, one might ask, can the Court conduct a proper Article 10 evaluation of the liability attached to Delfi’s activities if it constrains its characterisation of those activities by reference to the very court decisions which are said to have wrongly interfered with the applicant’s Article 10 rights?
So for instance when the Court, while discussing Delfi’s take down mechanisms, refers to Delfi’s “duty to avoid causing harm to third parties’ reputations” and its “duty of diligence”, from whence do these duties in relation to third party comments spring?  It can only be from the fact that the Court has predetermined Delfi’s status to be one of publisher rather than intermediary, by deferring to the national court’s decision that Delfi’s activity was governed by the Estonian Obligations Act.  It is difficult to conceive of such a duty being consistent with the position of neutral intermediary.
When we are in intermediary territory a different balance has to be drawn.  Indeed freedom of expression is at the heart of the ECommerce Directive’s intermediary liability protections, reflecting that there is a general interest in not imposing liabilities or content monitoring obligations on intermediaries, as the engines driving the free flow of information.
So if Delfi was based on the assumption that Delfi was a publisher, can the decision be sidelined as having no application to genuine online intermediaries? Possibly. But it could also be argued that the Court’s findings as to Article 10 apply to anyone in a factual position analogous to that of Delfi, regardless of the legal status accorded to it by the domestic courts. 
It would have been better if the Court had stated clearly whether on the facts before it the Court itself regarded Delfi as being in the position of an intermediary or a publisher, then analysed the Article 10 questions in that light, rather than defer to the decision of the national court on a point that so fundamentally affects the Article 10 analysis. As it is, the Court has proceeded on an artificial basis set by the national court that Delfi is deemed to have published the readers’ comments.
In any event Delfi’s activities were close enough to being those of an intermediary (and probably would generally be regarded as intermediary activities) that the decision has the potential to weaken thehuman rights foundation of intermediary liability protections. 
That is particularly so if the Court’s more general comments are taken as applicable to intermediaries rather than publishers. The Court expounded on the responsibility of those who professionally publish articles on a commercial basis to anticipate the responses of others: 
“the Court considers that the applicant company, by publishing the article in question, could have realised that it might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech.
It also appears that the number of comments posted on the article in question was above average and indicated a great deal of interest in the matter among the readers and those who posted their comments.
Thus, the Court concludes that the applicant company was expected to exercise a degree of caution in the circumstances of the present case in order to avoid being held liable for an infringement of other persons’ reputations. [86]”
This obligation was founded not on the controversial nature of the original article itself, which the court acknowledged was “a balanced one, a manager of the shipping company was given the opportunity to provide explanations, and the article contained no offensive language.”, but on the likely broad interest of the article and the alleged general reputation of reader comments on the site. 
In view of the Court’s emphasis on the professional and commercial character of the Delfi site, it seems unlikely that its logic would necessarily apply to comments on, say, a blog.  However many amateur or semi-amateur blogs do take advertising and the Court’s reasoning could apply to those, at least if they reach a certain size, reach or popularity.
The court went on to factor in anonymity, observing that it was Delfi’s decision to allow anonymous comments by non-registered users, and that by doing so “it must be considered to have assumed a certain responsibility for these comments”. 
Finally the court took a shot at the internet:
“The Court is mindful, in this context, of the importance of the wishes of Internet users not to disclose their identity in exercising their freedom of expression. At the same time, the spread of the Internet and the possibility – or for some purposes the danger – that information once made public will remain public and circulate forever, calls for caution.”
If Delfi is not referred to the Grand Chamber, the forthcoming CJEU case of Papasavvas, a reference from the Nicosia District Court lodged in July this year, may present an opportunity to start undoing the Delfi damage. 
The CJEU is in part a human rights court.  It has long treated the ECHR as part of EU law.  EU law now explicitly incorporates the EU Charter of Fundamental Rights.  SABAM v Scarlet and SABAM v Netlog show that the CJEU can give Article 10 ECHR and Article 11 of the Charter significant weight in the context of the internet. 
Like Delfi, Papasavvas concerns the position of a news website under the ECommerce Directive. Unlike Delfi, the questions relate to material provided by employees and freelance journalists, rather than comments by readers.  While therefore the questions asked do not bear directly on the Delfi facts, they are sufficiently close that Papasavvas could provide the CJEU with the opportunity to emphasise the importance for freedom of expression of maintaining the breadth and substance of intermediary liability protections.

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