Finally some relief for you lawyers bound by ethical guidelines that are possibly preventing you from commenting on defamatory or negative reviews about you or your law firm online? Just maybe, but not in the U.S., at least not yet. Yesterday’s ruling by the European Court of Human Rights in holding a European web host liable for users comments may have an impact on online discussion platforms like Yelp!, Rip Off Report and even Google Plus!
The case of Delfi AS v. Estonia proved the Estonian courts could hold the online news portal liable due to the comments made by anonymous readers. Delfi had a system setup for their website to flag users and automatically remove comments that were found to be offensive. The court was not impressed with the system or the fact that the comments had been removed prior to the filing of the lawsuit. As I read the court’s decision, supra, I thought:
If only Yelp! was hosted by OVH Europe!
Under Article 10 of the European Declaration of Human Rights the ruling by the court did not violate Delfi’s guaranteed freedom of expression. But it is felt this ruling will weigh heavy on website owners permitting reader comments. After the initial complaint delfi.ee hired a team of moderators to go through the sites anonymous and pseudonymous comments and segregate those from registered users.
Discussion Forums Already Going Under
Other Estonian discussion boards like fora have shut down their websites because they were unable to afford hiring moderators and didn’t want to follow suit in being the second victim after Delfi in being held liable for anonymous speech. The E-Commerce Directive, which is Europe’s counterpart to the U.S. DMCA takedown system and has been damaged by the court’s ruling.
Of course, much to the chagrin of U.S. attorneys, European hosts don’t abide by the DMCA Safe Harbor provisions, and are “notice-notice,” basically allowing the webmaster to keep up the infringing or offensive content. As a result, many spammers host their sites with servers on OVH Canada or France. Finally it appears the Europeans will crack down.
The systems cover all kinds of infringing or illegal content, including copyright infringements and generally a news portal like Delfi would not be held liable unless they did not take action to remove the comments after being notified. The problem with the E-Commerce Directive is that provides a minimum of level of liability, though the limits of the liability is not defined. This creates a situation where Delfi could be found in addition liable for defamatory comments that happened before the news portal was notified under Estonia law.
Importance of Protecting Speech Outweighed By Right to Be Free From Defamation or Offense?
The limits of intermediary liability standards could have been fixed by the European Court of Human Rights for freedom of expression on the Internet and have called attention to the importance of protecting free speech online. Instead this ruling has done the opposite for Internet companies who are now faced with controlling their users speech or facing charges that hit them financially.
Is There a Conflict with Manila Principles on Intermediary Liability?
The other issue with the ruling is it is in conflict with the Manila Principles on Intermediary Liability that entails the practices for Internet companies with disputes of user submitted content. This is guidelines for regulators dealing with intermediary liability. These guidelines have been approved of by civil society groups worldwide and that Intermediaries should not be held liable for third party content as long as they have not been involved in modifying the content.
It also includes the Intermediaries shall not be required to evaluate the third party content in a legal manner. Delfi has no way to appeal the ruling and are faced with doing damage control now, but since the ruling doesn’t have impacts from legislatures or other European courts they are better off handling the situation. But this could be the beginning for the E-Commerce Directive to impose greater liability on intermediaries, which will result in stifling European user’s speech. Then it will funnel to the Internet companies being under pressure to be legally conservative with their policies and what will be permissible online for users comments.
Internet forums would allegedly become civilized because it would limit conversations to a point where it would no one could offend another user, limiting the conversations and giving the courts more power to influence the behavior of Internet companies. More than likely, comment and debate will be shut down on those sites, due to costs to moderate and risks of suit irrespective of due diligence in removal.
Both sides and the public have an interest in honest speech, reviews and comments, but having a “thought police,” instead of the public decide could be just as dangerous as disallowing negative speech. Either way, review sites beware, if you are operating in Europe, you now have a whole new ball of wax and regulations to deal with.
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