The European Court of Human Rights has held that an NGO operating an online blog cannot be held liable for comments posted by internet users because the organisation quickly deleted the offending posts. Meanwhile, the Warsaw Court of Appeal has held the publisher of a news site liable even though it was not notified of the unlawfulness of comments before being sued. These new rulings provide an occasion for sharing a few remarks about online defamation.
The problem with online comments
In 2013 the European Court of Human Rights set off a debate among European lawyers in its judgment in Delfi AS v Estonia (Application no. 64569/09), upheld on appeal by the Grand Chamber in 2015. In that case, the publisher of a major news site complained to the ECtHR that the Estonian national courts had violated its freedom of expression under Art. 10 of the European Convention on Human Rights by holding it liable for abusive comments posted by users, despite the fact that the publisher had a notice-and-takedown procedure in place for removing offensive comments. The court ruled against the publisher at both instances, essentially finding that it did not violate the convention for the publisher to be held liable under Estonian law in these circumstances.
The Delfi judgment was criticised because the court upheld an obligation on the part of website publishers to apply means preventing inappropriate comments from being posted. Critics complained that the court misunderstood the responsibility of online intermediaries.
In 2016 the ECtHR issued a milder judgment in Magyar Tartalomszolgáltatók Egyesülete v Hungary (Application no. 22947/13), but that case involved different facts, primarily trade liable (defamation of a legal person rather than an individual).
Pihl v Sweden: Balancing privacy and freedom of expression
Recently the ECtHR had another opportunity to address liability for online comments. On 7 February 2017 it issued its judgment in Pihl v Sweden, denying the application and finding no violation of the convention. The case involved a post on a small blog operated by a Swedish non-profit association. The post alleged that the complainant, Rolf Pihl, belonged to a neo-Nazi party. Pihl notified the publisher of his objection and the comment was taken down the next day, with an apology. The comment was visible on the site for a total of 9 days. Nonetheless, Pihl sued the NGO in a national court for defamation. The Swedish courts at each instance denied his claim, and thus he filed a complaint with the ECtHR, alleging inadequate protection of his right of privacy under Art. 8 of the European Convention on Human Rights.
The court first reviewed its existing case law, pointing to the following criteria for evaluation:
- The context of the comment
- The measures taken by the publisher of the site to prevent or remove defamatory comments
- Possible liability of the actual authors of the comments as an alternative to the intermediary’s liability
- Sanctions imposed on the responsible entity by the national courts, e.g. the amount of damages awarded.
Turning to the circumstances of the case, the court found that the case required a balancing between the applicant’s right to respect for his private life under Art. 8 of the convention and the association’s right to freedom of expression under Art. 10 of the convention. Considering the NGO’s scale of operations, the court found that it would be excessively burdensome to expect it to filter comments, thus undermining access to impartial information online. The court further pointed out that although the association was notified of new comments, it did not screen them before publication, but it clearly indicated on the blog that comments were not moderated. The judges also stressed that the comment did not amount to hate speech or incitement to violence, and was removed quickly after Pihl complained. The ECtHR found that the Swedish courts had properly balanced these values and thus held that the application was ill-founded.
Warsaw Court of Appeal judgment: a tough approach to liability of online publishers
The recent ruling by the Warsaw Court of Appeal in the case of a well-known advocate and former politician against the publisher of a Polish news site should also be noted (judgment of 10 April 2017, Case VI ACa 1910/16, unpublished). The proceeding involved an article from 2010 under which offensive comments were posted. Under Art. 24 of the Polish Civil Code, the publisher was accused of defaming the plaintiff by publishing the comments and leaving them posted on its site.
The case lasted several years, as the Supreme Court of Poland twice set aside judgments by the court of appeal and remanded the case for reconsideration (Warsaw Court of Appeal judgment of 11 October 2012, Case VI ACa 2/12; Supreme Court judgment of 10 January 2014, Case I CSK 128/13; Warsaw Court of Appeal judgment of 27 February 2015, Case VI ACa 262/14; Supreme Court judgment of 30 September 2016, Case I CSK 598/15). On 21 April 2017 the Warsaw Court of Appeal issued a judgment upholding the liability of the portal’s publisher for defaming the plaintiff by tolerating offensive comments on its website. The court ordered removal of the offensive comments and publication of an apology on the portal. (At the time this article was written, no justification for the judgment had been issued yet.)
The lower court had appointed an expert who found that the publisher had no opportunity to read the comments prior to posting. However, it did screen comments through a spam filter which automatically blocked profanity, and through employees hired as moderators. But the expert also found that the automatic screening was ineffective because of variations in spelling by internet users. These findings were necessary because the case boiled down to a determination of whether the publisher should be liable under Art. 14(1) of the Electronic Services Act of 18 July 2002. If the publisher had knowledge of the comments it was liable, and if it did not it was released from liability. The problem also concerned the burden of proof. The Supreme Court had previously held in this case that lack of knowledge had to be proved by the defendant, not the plaintiff.
This case also presents other special circumstances. Before filing suit, the plaintiff did not call on the publisher to remove the comments as defamatory. The defendant learned of the plaintiff’s position only when it was served with the statement of claim. Nonetheless the court upheld the publisher’s liability. The plaintiff also argued that the publisher acted as an accessory in defaming him for which it should be liable on the basis of negligence, pursuant to Art. 422 of the Civil Code. The publisher allegedly aided the immediate infringers (anonymous internet users) in their tortious act. But in its judgment of 30 September 2016, the Supreme Court had rejected this argument on the ground that liability for defamation under Civil Code Art. 24 §1 covers both direct and indirect perpetrators, so the concept of accessory liability was irrelevant.
Further, in its ruling of 21 April 2017, the Warsaw Court of Appeal recognised a duty on the part of publishers of internet portals to actively and continually monitor content and quickly remove offensive comments. Previously, publishers had to react to complaints by injured parties, but under the logic of the court’s reasoning they should be proactive. Thus the ruling by the Polish court is stricter than the ruling by the ECtHR in the Delfi case.
Discussing the rulings of the European Court of Human Rights and the Warsaw Court of Appeal together, conclusions may be formulated on the courts’ approach to the issue of liability for online comments. First the differing status of the entities accused of defamation in the Swedish and Polish courts should be mentioned. In Sweden the defendant was a non-profit association. It clearly stated in its blog that comments were not moderated. The ECtHR found that the European Convention on Human Rights was not violated by the Swedish courts’ failure to hold the defendant liable.
In the Polish case, the defendant was a big media company which apart from its internet portal also publishes a high-circulation daily newspaper. The publisher moderates comments through IT infrastructure and staff. The Polish court found an infringement and held that as the publisher takes measures to moderate comments, they should be effective.
Before drawing general conclusions, however, certain reservations should be stated with respect to the Polish ruling, for which the justification has not been published yet. The strict holding by the Warsaw Court of Appeal may have been dictated by practical considerations. Pursuing claims for defamation against individual internet users is very difficult because of anonymity and the diffuse nature of the event (reaching numerous people across multiple jurisdictions). Thus the court might have found that it should allow civil liability to be focused on a single strong entity, in this case a media publisher.
In summary, based on the foregoing comparison, it may be concluded first that the courts distinguish between the liability of non-profit organisations and commercial publishers. The liability of NGOs can be excluded in certain circumstances. Second, the measures taken by the publisher of a portal or blog to combat offensive comments will be relevant for the courts. If the operator of a site takes certain measures, it should implement them effectively. Third, the court will consider the amount of time an offensive comment is allowed to remain visible online—the shorter the better.
Wojciech Rzepiński, Dispute Resolution & Arbitration practice, Wardyński & Partners