To Delete or Not To Delete Comments - Is that a Question? Worrying Liability Trends for Online Contents (II)

Leaving a comment is a great way to interact with an 

article, its author and the broader public. But who 

should be liable if the comment is derogatory? 

(c) Kettemann, 2012

In the last blogpost I argued that diverging liability judgements can lead to insecrutiy and hyper-sensitive intermediaries who will delete content, even if it is not illegal. 

I called upon Strasbourg's European Court of Human Rights to provide some guidance. It has (some time back). And it will again.

But let's go back first. In 1999, the European Court of Human Rights could confidently claim in Sürek v. Turkey (1999) that the owner of a journal was responsible for having published aggressively written letters to the editor, even if he had not personally associated himself with these. His conviction did not violate Article 10 because of the threats that were contained in these letters to particular individuals.

Extending Sürek to Internet intermediaries would mean burdening them with an impossible task. 

Imagine: Google woudl be responsible for all comments on all sites of all of its services.

Clearly, however, Internet intermediaries are not the prima facie editors of the information contained on their sites.

Even the webmaster of the site of an organization is not necessarily responsible for all content published on that site, as in the case of Renaud v. France (2010) shows, where the Court deemed exaggerated the conviction of a webmaster for remarks published, within a emotional public debate, on the association’s site.

This sounds promising if onen wants to  make the case against publisher's liability for Internet intermediaries based on jurisprudence from Strasbourg.

But this is not the end of the story.  

There is still a pending case, Delfi AS v. Estonia (communicated in 2011), which has the potential for trouble on the liability front. 

In that case the operators of an Internet news portal were held responsible in national courts for defamatory comment posted by a non-identifiable user below an article. Commenting was possible through a non-moderated system, as the technology was in place to delete messages on the request of third parties and to filter out certain language. The portal deleted the impugned comment without delay but was nevertheless convicted. 

Applying  Renaud mutatits mutandis would make the Court's decision in Delfi AS seem like a foregone conclusion. 

The Court should clarify, when deciding Delfi, what limits can be set for Internet intermediaries, just as it has so admirably shown the limits of state censorship of Google sites in Yildirim v. Turkey.

Limiting the ex ante content moderation obligations of Internet intermediaries is essential for keeping the flow of ideas on the Internet open. Navigating between state laws and its own content moderation rules is often difficult for international Internet intermediaries, and especially social networking sites, who are faced with conflicting demands and threats by states to disallow access altogether in case of non-removal of impugned information.

hat a wholesale ban of a whole service in reaction to illegal content on a certain site violates Article 10 ECHR (freedom of expression) has been confirmed in Yildirim, as well.

Attempts by some states, such as India, to oblige Internet intermediaries to pre-censor content have been met with strong international opposition. The Internet thrives on openness and the quick and free exchange of ideas. Therefore the responsibilities of Internet Service Providers cannot be understood to extend to ex ante moderation. 

Distinguishing Sürek and relying on Renaud, this is what Delfi AS can be expected to come down to.

That decision would also allow us to assess more clearly national liability decisions and help develop a trans-European liability regime - or rather, hopefully, a liability-minimizing and liberty-maximizing regime.