In a surprise decision, the European Court of Human Rights (ECHR) in Strasbourg has ruled that the Estonian news site Delfi may be held responsible for anonymous and allegedly defamatory comments from its readers. As the digital rights organisation Access notes, this goes against the European Union’s e-commerce directive, which "guarantees liability protection for intermediaries that implement notice-and-takedown mechanisms on third-party comments." As such, Peter Micek, Senior Policy Counsel at Access, says the ECHR judgment has "dramatically shifted the internet away from the free expression and privacy protections that created the internet as we know it."

A post from the Media Legal Defence Initiative summarises the reasons why the court came to this unexpected decision. The ECHR cited "the 'extreme' nature of the comments which the court considered to amount to hate speech, the fact that they were published on a professionally-run and commercial news website," as well as the "insufficient measures taken by Delfi to weed out the comments in question and the low likelihood of a prosecution of the users who posted the comments," and the moderate sanction imposed on Delfi.

In the wake of this judgment, the legal situation is complicated. In an email to Ars, T J McIntyre, who is a lecturer in law and Chairman of Digital Rights Ireland, the lead organisation that won an important victory against EU data retention in the Court of Justice of the European Union last year, explained where things now stand. "Today's decision doesn't have any direct legal effect. It simply finds that Estonia's laws on site liability aren't incompatible with the ECHR. It doesn't directly require any change in national or EU law. Indirectly, however, it may be influential in further development of the law in a way which undermines freedom of expression. As a decision of the Grand Chamber of the ECHR it will be given weight by other courts and by legislative bodies."

Manifestly unlawful

One of the worrying aspects of the ECHR decision is that it may encourage the idea that intermediaries are liable for "manifestly unlawful" content, without specifying what "manifestly unlawful" actually means. McIntyre points out that this is "something which may lead to a chilling effect where sites are over cautious in taking down material which might possibly be contentious."

As McIntyre notes, also troubling is that the judgment upholds a finding that "proactive monitoring" of Internet users can be required. That contradicts the important decision in the SABAM case of 2012, where the Court of Justice of the European Union (CJEU) ruled that forcing a hosting service to monitor and filter online content violated EU law. Copyright companies will doubtless try to use the Delfi decision to undermine that key CJEU judgement.

What's unfortunate is that Delfi would probably have won had it taken its case to the CJEU, given the e-commerce directive's clear guidelines, but this course of action was apparently not permitted by the Estonian courts. It therefore went to the ECHR, hoping for a ruling that the Estonian law was incompatible with the European Convention on Human Rights.

As Access's Micek told Ars: "The website argued that its 'freedom to impart information created and published by third parties'—the commenters—was at stake. Delfi invoked its Article 10 rights to freedom of expression under the European Convention on Human Rights and the [ECHR] accepted the case." Delfi's unexpected defeat there is likely to have important, if subtle consequences on not just the Web, but also freedom of speech and privacy, across the European Union.