liability for user generated content on an online news platform: the delfi case

LIABILITY FOR LIABILITY FOR USER GENERATED CONTENTUSER GENERATED CONTENT

ON AN ONLINE NEWS PLATFORMON AN ONLINE NEWS PLATFORM

THE DELFI CASETHE DELFI CASE

Dirk VOORHOOFDirk VOORHOOFINGER HØEDT-RASMUSSENINGER HØEDT-RASMUSSEN

Ghent UniversityGhent UniversityCopenhagen UniversityCopenhagen University

Somewhere in Europe Somewhere in Europe

Estonia Estonia

Mainland - islandsMainland - islands

Ice roads Ice roads

It started with an It started with an article in an onlinearticle in an onlinenewspaper : Delfinewspaper : Delfi

Should the iceroadsShould the iceroadsas public roads be kept open ?as public roads be kept open ?

http://www.youtube.com/watch?v=z_Y6ijrnn8s

http://www.youtube.com/watch?v=MdESlRLELns&gl=BE

Delfi AS is the owner of Delfi, an Internet news portal that publishes up to 330 news articles a day.

Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania

User Generated Content (UGC)

http://www.delfi.ee/

+ disclaimer on liability UGC+ disclaimer on liability UGC+ “Notice And Take Down”-system (NATD)+ “Notice And Take Down”-system (NATD)+ request no hate speech, no insult …+ request no hate speech, no insult …+ technical filtering obscenities+ technical filtering obscenities

The news article on Delfi

In 2006 Delfi published an article on its portal under the heading ‘SLK Destroyed Planned Ice Road’ (SLK = Saaremaa Shipping Company)

Mr. L. is a board-member and majority shareholder (the “face” of SLK) – well-known for his opposition against a bridge and considered responsible for the (annual) ice breaking of winter routes

Angry and offensive online comments

The article attracted 185 comments.

About 20 of them contained personal threats and offensive language directed against L.

More than one month later Mr. L. requested for removal of 20 comments and claimed 32.000 EUR as compensation of damages (reputation)

Comments were manifestly defamatory and incited to hatred or even to violence against Mr. L.

Delfi immediately removed the comments

Crucial question regarding damages

Who’s liable

- authors/users having posted the insulting hate speech on the news forum (content provider?)

- Delfi for having created a platform for UGC (as ISP or as online publisher?)

Directive E CommerceDirective E Commerce

Section 4: Liability of Section 4: Liability of intermediary intermediary service providersservice providers

Article 12-15Article 12-15


Section 4: Liability of intermediary service Section 4: Liability of intermediary service providers (ISP), Article 12-15providers (ISP), Article 12-15

– Aim to exempt ISP’s from liability under Aim to exempt ISP’s from liability under certain conditionscertain conditions

– Otherwise: risk of chilling effect Otherwise: risk of chilling effect + financial/economic impact+ financial/economic impact


Section 4: Liability of intermediary service Section 4: Liability of intermediary service providers restricted, Article 12-15providers restricted, Article 12-15

– HorizontalHorizontal derogation of liability derogation of liability

- Criminal Law- Criminal Law- Civil Law- Civil Law- Commercial Law- Commercial Law- Advertising Law/Fair Trade Practices- Advertising Law/Fair Trade Practices- Copyright Law- Copyright Law


Art. 12: Mere ConduitArt. 12: Mere Conduit

= transmission in network, access to network= transmission in network, access to network

The ISP is not liableThe ISP is not liable for the information transmitted for the information transmitted if:if:

a) does not initiate the transmissiona) does not initiate the transmission

b) does not select the receiver of the service b) does not select the receiver of the service

c) does not select/modify the informationc) does not select/modify the information contained in the transmission contained in the transmission

Directive E CommerceDirective E CommerceArt. 13: CachingArt. 13: Caching

Activity of ISP of automatic, intermediate and Activity of ISP of automatic, intermediate and temporary storage of information for sole purpose temporary storage of information for sole purpose of making more efficient the transmissionof making more efficient the transmission

ISP is not liableISP is not liable for the information transmitted if for the information transmitted if

a) does not modify the informationa) does not modify the information (..)(..)e) the provider acts expeditiously to remove or to e) the provider acts expeditiously to remove or to disable access to the information it has stored disable access to the information it has stored upon upon actual knowledgeactual knowledge that the that the initial sourceinitial source has been removed/access has been disabled, has been removed/access has been disabled, OR OR when a when a court or administrative authoritycourt or administrative authority has has ordered such removal or disablementordered such removal or disablement

Directive E CommerceDirective E CommerceArt. 14: HostingArt. 14: Hosting

= activity of ISP of the storage of information provided = activity of ISP of the storage of information provided by and at request of a recipient of a serviceby and at request of a recipient of a service

The ISP is not liable The ISP is not liable for the information transmitted for the information transmitted if:if:

a) does not have actual knowledge of illegal activity a) does not have actual knowledge of illegal activity or informationor informationb) the provider, upon obtaining such knowledge or b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to awareness, acts expeditiously to remove or to disable access to the informationdisable access to the information

(NATD-procedure)(NATD-procedure)


Art. 15: No general Art. 15: No general obligation to monitorobligation to monitor

Member states shall not impose Member states shall not impose a general obligation on a general obligation on providers to monitor the providers to monitor the information which they information which they transmit or store, nor a transmit or store, nor a general obligation to seek general obligation to seek actively facts or actively facts or circumstances indicating circumstances indicating illegal activityillegal activity


Art. 15: No general obligation to Art. 15: No general obligation to monitor, butmonitor, but

Member states may establish obligations for Member states may establish obligations for ISP’s promptly to inform competent public ISP’s promptly to inform competent public authorities of alleged illegal activities or authorities of alleged illegal activities or information provided by recipients of their information provided by recipients of their service or obligations to communicate the service or obligations to communicate the competent authorities, at their request, competent authorities, at their request, information enabling the identification of information enabling the identification of recipients of their servicesrecipients of their services


Art. 12-14Art. 12-14

Restrictions on liability of ISP’s do not Restrictions on liability of ISP’s do not affect the possibility for a court or affect the possibility for a court or administrative authority of requiring administrative authority of requiring the ISP to terminate or prevent an the ISP to terminate or prevent an infringement (or establishing infringement (or establishing procedures governing the removal or procedures governing the removal or disabling of access to information)disabling of access to information)


Art. 16: Codes of conductArt. 16: Codes of conduct

Member states shall encourageMember states shall encourage

- drawing up of codes of conduct at - drawing up of codes of conduct at Community level by trade, professional or Community level by trade, professional or consumer organisationsconsumer organisations

- esp. codes of conduct regarding the - esp. codes of conduct regarding the protection of minors and human dignityprotection of minors and human dignity

Council of Europe Declaration 2003Council of Europe Declaration 2003

Freedom of Communication on the Internet Freedom of Communication on the Internet

1. Content rules for the Internet1. Content rules for the Internet No further than those applied to other means No further than those applied to other means of content delivery of content delivery

2. Self- or co-regulation2. Self- or co-regulation

States should encourage…States should encourage…

3. Absence of prior state control3. Absence of prior state control

Council of Europe Declaration 2003Council of Europe Declaration 2003Freedom of Communication on the InternetFreedom of Communication on the Internet

4. Removal of barriers to the participation of individuals4. Removal of barriers to the participation of individuals… … foster access, afordable, no discriminationfoster access, afordable, no discrimination

5. Freedom to provide services via the internet5. Freedom to provide services via the internet

6. Limited liability of service providers6. Limited liability of service providers

No general obligation to monitor No general obligation to monitor

No liability if only transmissionNo liability if only transmissionNotice and take down or disable accessNotice and take down or disable access

when aware of illegal content when aware of illegal content

Possibility of issuing injunctionsPossibility of issuing injunctions

Council of Europe Declaration 2003Council of Europe Declaration 2003Freedom of Communication on the InternetFreedom of Communication on the Internet

7: Anonymity7: Anonymity

In order to ensure protection against online surveillance and In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, to enhance the free expression of information and ideas, member states should respect the will of users of the member states should respect the will of users of the Internet not to disclose their identity. Internet not to disclose their identity.

This does not prevent member states from taking measures This does not prevent member states from taking measures and co-operating in order to trace those responsible for and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements Fundamental Freedoms and other international agreements in the fields of justice and the policein the fields of justice and the police..

DelfiDelfi

Delfi liable for offensive comments posted Delfi liable for offensive comments posted by readers – UGC?by readers – UGC?

IF DELFI was acting as an ISP – Host IF DELFI was acting as an ISP – Host provider – EU Law …provider – EU Law …

Exempted from liability ?Exempted from liability ?

Delfi arguments : ISP !Delfi arguments : ISP !

UGCUGCAutomatic download, not edited, not moderatedAutomatic download, not edited, not moderated

NATD system was installed and functioned NATD system was installed and functioned + technical filtering of obscene words+ technical filtering of obscene words+ victim of defamation could notify + victim of defamation could notify

Delfi argued that it acted as an ISP - storage host whose Delfi argued that it acted as an ISP - storage host whose role was merely technical, passive and neutralrole was merely technical, passive and neutral

Portal exercised limited control over the publication of Portal exercised limited control over the publication of comments and applied NATD in accordance with ISP-comments and applied NATD in accordance with ISP-responsibility responsibility

Estonian court decisionsEstonian court decisions

County Court agreed and considered Delfi as ISP Delfi could not be considered the publisher of the comments, nor did it have any obligation to monitor them

Overruled by Tallin Court of Appeal

rejecting Delfi’s argument that it acted under EU rejecting Delfi’s argument that it acted under EU Directive 2000/31/EC on Electronic Commerce, as Directive 2000/31/EC on Electronic Commerce, as implemented by the Estonian Information Society implemented by the Estonian Information Society Services Act (ISS Act)Services Act (ISS Act)

Tallin Court of Appeal andEstonian Supreme Court

The measures taken by Delfi were insufficient to protect right to reputation of others.Delfi was a provider of content services rather than of technical services.Delfi had an economic interest in the comments and had acted similarly to a publisher of printed media. L. was free to choose against whom to bring the suit, in casu against Delfi.

Delfi should have prevented the comments from having been published and failed to remove the comments on its own initiative.

Tallin Court of Appeal andEstonian Supreme CourtDelfi is not an ISP

Delfi itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer that it was not liable for the content of the comments.

An information society service provider, falling under that ISS Act and the Directive on Electronic Commerce, had neither knowledge of nor control over information which was transmitted or stored.

Tallin Court of Appeal andEstonian Supreme CourtDelfi is not an ISP

A provider of content services, like Delfi, governs the content of information that was being stored, by integrating the comment environment into its news portal and invited users to post comments.

Delfi liable, award of damages 320 EURDelfi liable, award of damages 320 EUR

What to do ?

Important principle!

Introduce a case at European level because Estonian authorities had breached European law?

Which instance ?

Delfi liable, award of damages 320 EURDelfi liable, award of damages 320 EUR

Brussels, Luxembourg or Strasbourg?

Non-application of E Commerce Directive? Complaint European Commission ? Case to CJEU ?

Breach of freedom of expression Art. 11 EU Charter ?

Art. 10 ECHR ?

Delfi AS v. EstoniaDelfi AS v. Estonia

Delfi logded complaint in Strasbourg ECtHR for alleged violation of Article 10 ECHR

Was interference

- prescribed by law- pursuing a legitimate aim

- “necessary in a democratic society” ?


ECtHR 10 October 2013 ECtHR 10 October 2013

First SectionFirst Section

ECtHR accepted that ECtHR accepted that the domestic courts had rejected the domestic courts had rejected the portal’s argument that, under EU Directive the portal’s argument that, under EU Directive 2000/31/EC on Electronic Commerce, its role as an 2000/31/EC on Electronic Commerce, its role as an Internet society service provider or storage host was Internet society service provider or storage host was merely technical, passive and neutral, merely technical, passive and neutral, finding that finding that the portal exercised control over the publication the portal exercised control over the publication of comments. of comments.


Delfi complained that being held Delfi complained that being held liable for the comments of its readers breached its liable for the comments of its readers breached its right to freedom of expression – Art. 10 ECHRright to freedom of expression – Art. 10 ECHR

The Court held, unanimously, that there had been The Court held, unanimously, that there had been no violation of Article 10 no violation of Article 10 (freedom of expression) (freedom of expression) of the Convention. It held that the finding of liability of the Convention. It held that the finding of liability by the Estonian courts was a by the Estonian courts was a justified and justified and proportionate restrictionproportionate restriction on the portal’s right to on the portal’s right to freedom of expression.freedom of expression.


No violation of Article 10 No violation of Article 10

in particular, because: in particular, because:

- the comments were highly offensive; - the comments were highly offensive;

- the portal failed to prevent them from becoming - the portal failed to prevent them from becoming public, profited from their existence, but allowed their public, profited from their existence, but allowed their authors to remain anonymous;authors to remain anonymous;

- and, the fine imposed by the Estonian courts was not - and, the fine imposed by the Estonian courts was not excessive.excessive.


Judgment First Section ECtHR 10 October 2013Judgment First Section ECtHR 10 October 2013

Request for referral by Delfi + support by 70 Request for referral by Delfi + support by 70 organisations in sector of media, journalism, internet organisations in sector of media, journalism, internet and human right (8 January 2014)and human right (8 January 2014)

Panel of 5 judges : serious matter ECHR / society.Panel of 5 judges : serious matter ECHR / society.

On 17 February 2014 the case was referred to the On 17 February 2014 the case was referred to the Grand Chamber Grand Chamber

The Court will be holding a Grand Chamber The Court will be holding a Grand Chamber hearing in this case on 9 July 2014 at 9.15 a.m. hearing in this case on 9 July 2014 at 9.15 a.m.

Is there a duty to pre-monitor UGC on online media fora?

- Economic and financial aspects

- Technical aspects

- Democracy, Freedom of Information

- Right of anonymity?

- European perspective (28 Member States)

- International, global perspectives

“Duties of care” ?

Delfi took no specific measures such as

- a requirement of prior registration of users before they were allowed to post comments

- monitoring the (anonymous) comments before making them public

- or speedy review of comments after posting

Legal obligation or self-regulation: same impact for the users ?(pre-monitoring)

Why making a problem of pre-monitoring UGC as a consequence of liability based on the law, while if Delfi would pre-monitor on its own initiative there would be no legal discussion !?

Delfi AS v. Estonia – more infoDelfi AS v. Estonia – more info

http://inforrm.wordpress.com/2013/10/29/treating-a-news-portal-as-publisher-of-http://inforrm.wordpress.com/2013/10/29/treating-a-news-portal-as-publisher-of-users-comment-may-have-far-reaching-consequences-for-online-freedom-of-users-comment-may-have-far-reaching-consequences-for-online-freedom-of-expression-dirk-voorhoof/expression-dirk-voorhoof/

http://inforrm.wordpress.com/2014/01/15/news-delfi-v-estonia-liability-for-user-http://inforrm.wordpress.com/2014/01/15/news-delfi-v-estonia-liability-for-user-comments-applicant-seeks-referral-to-grand-chamber/comments-applicant-seeks-referral-to-grand-chamber/

http://www.psw.ugent.be/cms_global/uploads/publicaties/dv/REQUEST%20FORhttp://www.psw.ugent.be/cms_global/uploads/publicaties/dv/REQUEST%20FOR%20REFERRAL%20TO%20THE%20GRAND%20REFERRAL%20TO%20THE%20GRAND%20CHAMBER_DELFI_2014%2001%2008%20FINALDV.pdf%20CHAMBER_DELFI_2014%2001%2008%20FINALDV.pdf

http://www.mediadefence.org/sites/default/files/Delfi%20Support%20Letter.pdfhttp://www.mediadefence.org/sites/default/files/Delfi%20Support%20Letter.pdf

http://inforrm.wordpress.com/2014/02/18/news-court-of-human-rights-grand-http://inforrm.wordpress.com/2014/02/18/news-court-of-human-rights-grand-chamber-to-hear-delfi-case/#more-25347chamber-to-hear-delfi-case/#more-25347

liability for user generated content on an online news platform: the delfi case

Education

europe declaration

estonian supreme

eu directive

estonian courts

member states

administrative

iss act

general obligation