Monday, 25 November 2013

Delfi v Estonia - ECHR suggests websites need to police their comments for defamatory posts

In Delfi v Estonia the ECHR delivered judgment about an Estonian news site should worry all websites allowing users to comment below online articles. Until now, prompt removal upon complaint has provided a defense against libel actions. This ruling by the European Court of Human Rights suggests websites need to police their comments and anticipate when a story will attract defamatory posts.

This will place a huge burden on news sites, which will need to review their moderation if the judgment is not challenged and rejected in the ECHR's grand chamber.Prior to this blog editors have always relied on rulings such as Godfrey v Demon Internet and Kaschke v Gray & Hilton which have said that removal on notice provides a defence to those blogs that host comments. More on this here.

In the case of Tamiz v Google [2013] here the High Court in London found Google was not the publisher of defamatory material posted by someone using its blog facility, the judge suggesting you could not hold the owner of a wall responsible for graffiti sprayed on it by someone else.

The Court of Appeal has overturned that decision, however, and likened Google to the owner of a notice board who, once aware that a defamatory notice has been pinned up, must either remove it or be liable for it.

In Delfi v Estonia the European Court of Human Rights went further, and said a news website should be able to predict which articles might generate offensive or libellous comments, and be prepared to act in advance. This would seem to stretch the obligations of news site owners beyond the practical and, although not directly applicable here, the case may set a tone for future decisions. The second fundamental issue is whether the law can balance the right to freedom of expression, while vindicating the rights of the person who has been defamed. It is fundamental to our Constitution and vital to our democracy that justice is administered in public.

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