Huge Loss For Free Speech In Europe: Human Rights Court Says Sites Liable For User Comments

from the this-is-big-and-dangerous dept

Last year we wrote about a very dangerous case going to the European Court of Human Rights: Delfi AS v. Estonia, which threatened free expression across Europe. Today, the ruling came out and it’s a disaster. In short, websites can be declared liable for things people post in comments. As we explained last year, the details of the case were absolutely crazy. The court had found that even if a website took down comments after people complained, it could still be held liable because it should have anticipated bad comments in the first place. Seriously. In this case, the website had published what everyone agrees was a “balanced” article about “a matter of public interest” but that the website publisher should have known that people would post nasty comments, and therefore, even though it automated a system to remove comments that people complained about, it was still liable for the complaints.

The European Court of Human Rights agreed to rehear the case, and we hoped for a better outcome this time around — but those hopes have been dashed. The ruling is terrible through and through. First off, it insists that the comments on the news story were clearly “hate speech” and that, as such, “did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful.” To the court, this means that it’s obvious such comments should have been censored straight out. That’s troubling for a whole host of reasons at the outset, and highlights the problematic views of expressive freedom in Europe. Even worse, however, the Court then notes that freedom of expression is “interfered with” by this ruling, but it doesn’t seem to care — saying that it is deemed “necessary in a democratic society.”

Think about that for a second.

The Court tries to play down the impact of this ruling, by saying it doesn’t apply to any open forum, but does apply here because Delfi was a giant news portal, and thus (1) had the ability to check with lawyers about this and (2) was publishing the story and opening it up for comments.

The rest of the ruling is… horrific. It keeps going back to this “hate speech” v. “free speech” dichotomy as if it’s obvious, and even tries to balance the “right to protection of reputation” against the right of freedom of expression. In other words, it’s the kind of ridiculous ruling that will make true free expression advocates scream.

When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the ?protection of the reputation or rights of others?, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8

And the court insists that the two things — reputation protection and free speech “deserve equal respect.” That’s bullshit, frankly. The whole concept of a right to a reputation makes no sense at all. Your reputation is based on what people think of you. You have no control over what other people think. You can certainly control your own actions, but what people think of you?

The court sets up a series of areas to explore in determining if Defli should be held liable for those comments. In the US, thanks to Section 230 of the CDA, we already know the answer here would be “hell no.” But without a Section 230 in Europe — and with the bizarre ideas mentioned above — things get tricky quickly. So even though the court readily agrees that the article Defli published “was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements” it still puts the liability on Delfi. Because the site wanted comments. It actually argues that because Delfi is a professional site and thus comments convey economic advantage, Delfi is liable:

As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comment environment, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company?s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the writer of the comments did not mean that it had no control over the comment environment…

Also? Having “rules” posted for comments somehow increases the site’s liability, rather than lessens it as any sane person would expect:

The Court also notes in this regard that the ?Rules of comment? on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off-topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors? ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company?s news portal ? only the applicant company had the technical means to do this. In the light of the above and the Supreme Court?s reasoning, the Court agrees with the Chamber?s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal.

Yes, that’s right. They get in more trouble for posting rules saying behave. It’s incredible.

The next key finding: because commenters are anonymous and anonymity is important — and because it’s difficult to identify anonymous commenters — well, fuck it, just put the liability on the site instead. That really does seem to be the reasoning:

According to the Supreme Court?s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to effectively bring a claim against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the Krone Verlag (no. 4) judgment, where it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company?s right to freedom of expression….

Further on the question of liability, the court finds that because Delfi’s filter wasn’t good enough, that exposes it to more liability. I wish I were making this up.

Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention…. The Court notes that as a consequence of this failure of the filtering mechanism, such clearly unlawful comments remained online for six weeks….

Then the court says that because the “victims” of “hate speech” can’t police the interwebs, clearly it should be the big companies’ responsibility instead:

Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.

Finally, the court says that since the company has stayed in business and is still publishing, despite the earlier ruling, it proves that this ruling is no big deal for free speech.

The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia?s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments ? now existing alongside the possibility of posting registered comments, which are displayed to readers first ? are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company?s freedom of expression was disproportionate on that account either.

The ruling is about as bad as you can imagine. It is absolutely going to chill free expression across Europe. Things are a bit confusing because the EU Court of Justice has actually been much more concerned about issues of intermediary liability, and this ruling contradicts some of those rulings, but since the two courts are separate and not even part of the same system, it’s not clear what jurisdiction prevails. It is quite likely, however, that many will seize upon this European Court of Human Rights ruling to go after many websites that allow comments and free expression in an attempt to block it. It is going to force many sites to either shut down open comments, curtail forums or moderate them much more seriously.

For a Europe that is supposedly trying to build up a bigger internet industry, this ruling is a complete disaster, considering just how much internet innovation is based on enabling and allowing free expression.

There is a dissenting opinion from two judges on the court, who note the “collateral censorship” that is likely to occur out of all of this.

In this judgment the Court has approved a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content). We find the potential consequences of this standard troubling. The consequences are easy to foresee. For the sake of preventing defamation of all kinds, and perhaps all ?illegal? activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst.

It further notes how this works — in such a simple manner it’s disturbing that the court didn’t get it:

Governments may not always be directly censoring expression, but by putting pressure and imposing liability on those who control the technological infrastructure (ISPs, etc.), they create an environment in which collateral or private-party censorship is the inevitable result. Collateral censorship ?occurs when the state holds one private party A liable for the speech of another private party B, and A has the power to block, censor, or otherwise control access to B?s speech?. Because A is liable for someone else?s speech, A has strong incentives to over-censor, to limit access, and to deny B?s ability to communicate using the platform that A controls. In effect, the fear of liability causes A to impose prior restraints on B?s speech and to stifle even protected speech. ?What looks like a problem from the standpoint of free expression … may look like an opportunity from the standpoint of governments that cannot easily locate anonymous speakers and want to ensure that harmful or illegal speech does not propagate.? These technological tools for reviewing content before it is communicated online lead (among other things) to: deliberate overbreadth; limited procedural protections (the action is taken outside the context of a trial); and shifting of the burden of error costs (the entity in charge of filtering will err on the side of protecting its own liability, rather than protecting freedom of expression).

It’s disappointing they were unable to convince their colleagues on this issue. This ruling is going to cause serious problems in Europe.

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Comments on “Huge Loss For Free Speech In Europe: Human Rights Court Says Sites Liable For User Comments”

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Anonymous Coward says:

Re: Re:

Sometimes even arguing with a person of Jewish descent, on well… anything at all (weather, physics, chemistry, favorite sports team, etc.) can get you labeled as antisemitic.

You really have to be extra careful what you say around people of Jewish descent especially if they’re scientists or reporters.

Anonymous Coward says:

Re: Re: Ummm, what?

I suspect that you personally need to be careful arguing around any educated person.

If you are using anti-Semitic terms in everyday conversation, it’s clearly not the person you’re talking to who has the problem. I’m Jewish, and not once have I ever thought someone was anti-Semitic due to their opinions on anything that didn’t relate to religion. This doesn’t mean that racists can’t also discuss physics* or the weather- but it’s not their opinions on physics or weather that make them racists.

*Physics is a bad example as most racists are too uneducated or too dumb to hold a meaningful conversation about it.

John Fenderson (profile) says:

Re: Re: Re:

“Sometimes even arguing with a person of Jewish descent, on well… anything at all (weather, physics, chemistry, favorite sports team, etc.) can get you labeled as antisemitic.”

This is the purest form of BS I have seen today. I’ve had plenty of arguments with Jewish folks (mostly scientists), and never once has anyone slapped an antisemitic label on me.

Probably because their ancestry and/or religion was never a component of any of the arguments.

Ninja (profile) says:

This is just the rotten cherry on top of a huge pile of shit that has been building all over the world. We are fast approaching totalitarianism everywhere. Disguised yes but totalitarianism. You can’t have strong dissenting opinions from the established norm or you are a radical, a terrorist, an extremist. Just imagine a few key actors from the past in the environment of today. Or rather we don’t need to imagine since them too suffered from the same maladies. Still, the current environment is rapidly becoming much worse because at the same time there’s a generalized crackdown onto the open, spreading nature of the internet (that would have greatly helped such past characters) and at the same time technology and surveillance are advancing in an alarming pace. Technology per se is not an issue but the use of such technology to slash free expression and privacy that were conquered not long ago is simply terrifying.

Are we witnessing the beginning of some sort of ne Dark Ages?

Uriel-238 (profile) says:

Re: Re: They can embrace and utilize the net, or make it criminal, and make everyone criminals.

Because I’m pretty sure that the post-millennial generations are going to tolerate having the internet taken away, and playing around with taboo topics and media (whether goatse or child porn or neo-nazi propaganda or obvious hate-speech) is a thing they do the way kids used to play around with matchsticks.

And when they can poke a thing and have big governments stomp around and destroy things because of it, that passes as funny (hence SWATting isn’t going away anytime soon).

So, no. The Internet is going to win out on this one in the long game. The difference is whether we have to go through a prohibition phase in which providers become the new mafia.

Anonymous Coward says:

Re: Re: Re: They can embrace and utilize the net, or make it criminal, and make everyone criminals.

Because I’m pretty sure that the post-millennial generations are going to tolerate having the internet taken away…

As long as they’ve still got social sites and a party to go to this weekend they won’t give a flying flip.

Anonymous Coward says:

Re: Re: Re:2 They can embrace and utilize the net, or make it criminal, and make everyone criminals.

Its the social sites that are most threatened by this ruling, as they only have user generated content, and adverts. However without the user generated content they get no eyeballs for the adverts.

Uriel-238 (profile) says:

Re: Re: Re:4 Good little drones

…if our administrators could only separate the terrorists from the good-little-drones and keep the good-little-drones happy and fed.

But as it is, our plutocrats can’t see past their own greed to aim for fair governance. (It might be that small-town instinct that does this where we just don’t regard people outside our top 50-or-so facebook friends as real people with real needs).

Every good-little-drone is sooner or later going to be starving or require medical attention or dragged in by the police on trumped charges — or they’ll know someone in such a plight — and will become less good and less droney.

And this process accellerates until there are guillotines and Robespeare.

Uriel-238 (profile) says:

Re: Re: Re:2 How it will go down...

Plenty of end users are based in Europe.

If we’re lucky, social network sites will tell the EU authorities to GFY, and will protect the privacy of their assets. (Google was flip-flopping on this for a while but seems to have decided ultimately to side with their end-users.)

Then the independent states will decide if they’re just going to block those sites and play ISP whack-a-mole.

I suspect the intelligence institutions will try to hack the social networks and we’ll go through a period deciding whether that’s legally admissable. And then the networks will get their encryption and security up to speed.

And in the meantime, by escalating the criminality of dissenting speech or offensive speech, it will become on par with the criminality of child porn, and traffickers of such porn will experience a golden age, as all users protect their identities with the same vigilence as do Anarchists, Lunatics and Terrorists.

jupiterkansas (profile) says:

Re: Re: Re: They can embrace and utilize the net, or make it criminal, and make everyone criminals.

Oh yes, people will be free to do whatever they want as long as they don’t try to make money at it.

Obviously it’s easier (and more lucrative) for goverments to blame the businesses for their user’s behavior and keep them in line than it is to go after the supposedly anonymous users themselves.

That’s the future that’s being advocated here.

Anonymous Coward says:

Re: Re:

going to be either large scale revolts in the next decade or small scale revolutions. Either way I suspect most of us that post on this site will die trying to defend what we believe in from an oppressive state no matter where we live.

Good little drones never question what their leadership does. Only bad people and terrorists use sites like this that show fault in the perfect leaders.

Richard (profile) says:

Re: Re: Re: Re:

Most of those aren’t “based” there. They’re studios or offshoots.


They may have been taken over by the big players with oversees head offices – but the studios all started as independents in the UK. EG Core (Tomb Raider) Rare, Bulfrog, LionHead etc etc.

If they got shut down then the founders would just start up here as independents again. (As Peter Molyneux has done more than once already.)

Richard (profile) says:

Re: Re: Re: Re:

anything that has gotten big seems to only come out of the US, China, or Japan

It may seem that way to a blinkered American but it is not true.

The web came from a Brit working in CERN in Geneva and the processor in your smartphone was almost certainly designed in Cambridge UK.

The Computer as we know it invented by Babbage, Turing, Newman (Max not Johnny Von), Flowers and Kilburn. All Brits.


Re: US Free Speech Model

It’s all about who is doing the regulating. Plus, you will still have plenty of people that will stand up for the concept of free speech in general even if there are plenty of corporate toadies willing to make excuses for abusive corporations.

I may not agree with a particular forum that enforces a particular brand of group think but that’s far less harmful than a broad government mandate.

With corporate censorship you are still left with a diverse range of choices.

GonzoI says:

Re: US Free Speech Model

The 1st Amendment doesn’t give you rights to post to a private website or in any way limit the owner of that website from restricting or eliminating your ability to exercise your free speech through that medium. That is NOT the same as saying it doesn’t apply. The government has zero authority to prevent what you might say there. Once you’ve said it, though, the effect of what you’ve said gets into the “yelling fire in a theater” arguments.

GonzoI says:

Re: Re:

Open forums/comments/social media, yes. Moderated would still be allowed, as you could individually censor each comment or post if you managed to find some model where that would be viable. Limiting to verified accounts with a real identity established would also be allowed, as it would allow the liability to go to the commenter in this insane legal ruling’s words. I believe what you might end up seeing would be professional commentary while the public is silenced. A farce of freedom George Orwell’s characters would have found familiar.

Duke (profile) says:

Re: Re:

The ruling explicitly excludes forums and social media, and most comment sites.

Secondly, nothing was banned. The ECtHR didn’t say that sites were liable for comments. They said that it wasn’t a disproportionate interference with a site’s freedom of expression in this specific case for this specific site to be liable for these specific comments to the extent they were found liable.

They still relied on a lot of the findings of law of the Estonian Supreme Court; including that the EU’s limitations on liability didn’t apply (if they did, it would be a different story).

This ruling isn’t the end of the world. If it had gone the other way it would have been a great boost to Internet comments etc., but all this ruling does is maintain the status quo, giving national governments the option, in extreme circumstances, of imposing liability on sites for user comments.

Bergman (profile) says:

Re: Re:

If the site owner is liable for the content of comments even if they delete troublesome ones, the solution is obvious:

Get on every EU government website that has any ability to post comments, upload files or chat. Make Holocaust-denying comments via those mechanisms.

After the EU government is arrested for the crime, the people will have to elect a fresh one that will, hopefully be less corrupt and out of touch with reality.

Violynne (profile) says:

Anyone ever notice, regardless where in the world a person is, the more freedoms a person has to speak their minds, the more governments control that speech?

Democratic countries seem to be the worst, all the while pointing fingers how Communism is the worst. One of these days, someone will sit down and realize, “Hey, we’re acting just like they are! Maybe we should scale back our own personal fears.”

On second though, in looking at past history, this is obviously a task far too complicated for an intelligent species.

Oh dear! This post would likely put Techdirt in the line of fire… if it weren’t in the US.

For now.

Nothing new about teh internets! says:

"exercised a substantial degree of control over the comments published on its portal"

Yes. The site has control, it’s the publisher. Just like newspapers, an editor scans letter before priting. Nothing is really new for teh internets, see?

Neither is Techdirt an impartial platform with 230 protection.

As this comment may prove when “Held for Moderation”.

That One Guy (profile) says:

Re: If you can't tell the difference between a newspaper and a website, you have no business comparing the two

Tell you what, if you think it’s so easy, why don’t you offer your services pre-screening all comments and user submissions on the various sites then?

I’m sure a site like Youtube for example would be a breeze for you to keep clear of any possibly illegal or potentially illegal content. I mean, there’s only multiple day’s worth of videos uploaded on an hourly basis, and probably several millions of comments left during the same period, so it should be easy as can be to moderate all of that, right?

Anonymous Coward says:

Re: Re: If you can't tell the difference between a newspaper and a website, you have no business comparing the two

Pretty sure your stats are outdated. Their latest stats page says over 300 hours of video uploaded per minute. Does a good job of illustrating the magnitude of the moderation problem though.

nasch (profile) says:

Re: Re: "exercised a substantial degree of control over the comments published on its portal"

Wait…Techdirt doesn’t have 230 protections? But TD is based in the US, where Section 230 applies.

He’s suggesting that since TD has a spam filter, they’ve given up their 230 protections. So now you know what a waste of time it is to argue with him. 🙂

Gwiz (profile) says:

Re: Re: Re: "exercised a substantial degree of control over the comments published on its portal"

He’s suggesting that since TD has a spam filter, they’ve given up their 230 protections.

Yeah, he also thinks that Techdirt “censors” him because the spam filter is probably setup to blacklist IP addresses that get huge amounts of “report” clicks.

That One Guy (profile) says:

Re: What's good for the goose

How did I miss it…

Anyway, if you support the idea that sites have an obligation to moderate their comments(‘Just like newspapers’), and/or should be held accountable for comments that their users post, then you not only deserve to have every single one of your comments ‘Held for moderation’, you have to be a hypocrite to complain when they are.

Clearly the site needs to check to make sure your comments don’t have any content that could get TD in legal hot water, and as a result all of them need to be checked before they are posted publicly. That this might take a while at times is just part of the system, an expected result given the amount of comments they need to wade through.

Anonymous Coward says:

Re: Re: What's good for the goose

And those that complain the loudest on this site about having to put up with their comments being held for moderation are the ones who complain about having their comments censored and hidden by users of this site even though those comments that are hidden are done so because they are either spam, abusive or trollish and should be moderated as this site would run into trouble with this courts ruling should this site fall under the EU jurisdiction.

That One Guy (profile) says:

Re: Re: Re: What's good for the goose

Yup, gotta love those double standards.

“Sites should be responsible for the comments made by those that use them, with objectionable comments barred from being posted!” one minute, and “Holding (my) comments for moderation, and/or allowing people to hide objectionable comments is censorship and persecution of the highest order!” the next.

Ian says:

Re: It's Europeans... what do you expect?

Democracy has never existed in Europe, or elsewhere for that matter. CAn’t have the peasants deciding what’s best for them!
I assume you may be in the US? If so, how is that “free speech” thing going over there? What with protests having stick to predetermined “free speech zones”! In other words, you have the freedom to agree with the government or STFU.

That One Guy (profile) says:


They absolutely crushed any possible chance for tech companies who allow customer interaction on their sites and services to operate in the EU. All in a single ruling. That takes some real dedication to eliminating free speech, they must be so very proud.

Unless this gets overturned like, immediately, the fallout over this ruling is going to be huge.

Comments on sites? Eliminated.
Twitter? Not any more.
Youtube(comments and videos)? ‘Not available in your area’.

Basically any site that allows user submitted content can no longer operate in the EU, as as this ruling makes it far too legally dicey to do so, so they either completely remove the ability for people to submit their own content(utterly crippling certain services), or they block anyone from the EU from interacting with their services in any real meaningful way.

Uriel-238 (profile) says:

Re: Frankly, I can't imagine this NOT getting overturned quickly...wait... There it is.

Given the Right to be forgotten hasn’t been overturned yet. I guess we’re going to have to see all the forum hosts get raided by Antiterrorismo Pronto Impiego (Do they do that in Europe?) and shut down a la MegaUpload.

After that, yeah, all the sites will move to offshore hosting services and blocked regionally (or not) until it’s decided how stupid and unenforceable this is.

Speaking of the RTBF thing, I take that people in Europe just TOR their way out of Europe to do their Google searches on forgetees, yes?

So what was exactly accomplished with that exercise?

tqk (profile) says:

Re: Re: Frankly, I can't imagine this NOT getting overturned quickly...wait... There it is.

Speaking of the RTBF thing, I take that people in Europe just TOR their way out of Europe to do their Google searches on forgetees, yes? So what was exactly accomplished with that exercise?

Snowden says get your friends using tor, so just be glad the opposition is so stupid they’re doing our work for us.

Booting from Tails Linux on a USB key will even use i2p instead of tor.

OldMugwump (profile) says:

Unless this gets overturned like, immediately, the fallout over this ruling is going to be huge.

I hope you’re right and that’s how people handle it – ‘Not available in your area’.

That’s the only way to turn the EU around and make them wake up to what they’ve done.

Sometimes things have to get worse before anybody bothers to make them better. Let’s hope they just got bad enough.

Anonymous Coward says:

Re: Re: Re:

Over at ars is a contrasting article about how the decision means little.

“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.”

Mike seems to be …
a) Jumping to conclusions, and
b) Looking at things, the way Americans always do, from a very amerocentric viewpoint. Using US laws to frame things, regardless that those laws don’t apply overseas.

Anonymous Anonymous Coward says:

Re: Re: Re: Re:

“Looking at things, the way Americans always do, from a very amerocentric viewpoint. Using US laws to frame things, regardless that those laws don’t apply overseas.”

It is interesting the jealousy you expound. Americans (I presume you mean residents of the United States of America because America has Northern, Southern, and Central parts) have rights that others don’t have, at least not stated in the same way as the US states theirs. That we wish those same rights be bestowed upon everyone else in the world is not such a terrible thing.

Now, if you wish to discuss how the US is currently going about, ahem, protecting those rights, well there have been plenty of discussions here on Techdirt about atrocities committed by various components of government and the private sector. Can we do better for ourselves? Working on it. Should our own failings keep us from wishing such rights on others? Not a chance.

Anonymous Anonymous Anonymous Coward says:

Re: Re: Re:2 Re:

It’s not about wishing things for others, it’s a cultural myopia.
Rather than take the time to educate yourselves on the laws and customs of other countries, instead you discuss their issues as if they were your own.

I actually have more rights where I live than you do, and free health care and…, so it’s not about jealousy. It’s a frustration born from reading article after article here where x violates India’s net Neutrality, where y violates Croatias 1st amendment rights etc.

G Thompson (profile) says:

Re: Re: Re: Re:

Wow you can cut&paste but cannot read the actual tl;dr summary at the top of the article (under the title and above the byline) that Glyn writes.

The ruling is likely to be influential on EU courts’ thinking in future.

It seems you have no idea how courts are influenced by other court decisions, especially a decision by a major court like this both in the EU, US, Oceania etc. And like most people who stick there heads in the sand you are cherry picking your quotes.

PS: I’m Aussie so calling me US-Centric want wash either.

Uriel-238 (profile) says:

Re: Re: Re: A very amerocentric viewpoint

Yeah, over here we also have rulings that the courts try to frame as very narrowly applicable and yet the precedent it sets spreads outward like a kudzu burrowing into old brickwork.

The most recent big example was the Hobby Lobby ruling, which has opened up a bevy of court cases from other corporations who have religious beliefs that prevent them from following US law.

But my favorite is the Al Capone case that set the precedent fuck the law if you’re jackass and we don’t like you which has become the groundwork of most criminal cases in the new millennium.

Europe has examples of shitty ruling serving as precedent running back to the fourteenth century, but I’m less familiar with them.

Maybe we Amerocentricists know what we’re talking about.

Anonymous Coward says:

What others think...

“The whole concept of a right to a reputation makes no sense at all.”

A little off the rails with that one. Courts have recognized defamation torts, i.e., libel and slander, for a very long time.

I get that the ruling in this case is entirely disturbing, but hyperbole serves only to weaken your argument.

G Thompson (profile) says:

Re: What others think...

No defamation is an absolutely different beast then “right of reputation”.

The right of reputation is specifically designed to bypass defamation defenses so that people cannot voice there opinions or present factual evidence of proven past events that the person did and does not want anyone to remember. It’s a tool to rewrite history for those who have the wherewithal (money, power, influence) and cannot stand that the peons now have a platform to remember things by.

It is NOT about defamation and has no bearing on the histrionics of defamation actions.

Anonymous Coward says:

how will they deal with sites like reddit and 4chan. since eu countries have started claiming that their internet laws apply globally. these sits are basically comment aggregators. they exist specifically to drive visitor comments. and if they think g-rated comments that pop up on a newsite is hate speach then they will get a huge kick out of the r/x rated stuff on these types of sites.

Duke (profile) says:

Re: Re:

how will they deal with sites like reddit and 4chan.

They won’t. This ruling was very clear that sites like reddit and 4chan were a different matter. It is a very narrow ruling. Secondly, this ruling doesn’t make anything illegal, and doesn’t make anyone liable for anything.

All the ECtHR did (or can do) was say that it wasn’t a disproportionate interference in this specific case for this site to be found liable for these comments in the way it was. And it came to this conclusion based on a whole host of specific factors – including some assumed from the Estonian Supreme Court’s decision.

Anonymous Anonymous Coward says:

Mass Extinction Event

It appears the only way for EU websites to allow comments under this ruling will be to hire lawyers to preview all comments prior to posting. Not just any lawyers either. They must be politically correct lawyers who undergo constant training as to what is politically correct, today. Who’s gonna want that job?

Then one has to think about what tests those politically correct lawyers are going to apply, and how one might keep them applicable in an ever changing environment where the rush to the middle may very well become an Olympic event (assuming the IOC doesn’t crash the concept with trademark violations).

Given the above, any profitability of any organization that allows comments will quickly go the way of extinct species, and that may well be the expected outcome of the Human Rights Court, who forgot about human rights, except when the ‘human’ in question is actually a corporation.

That One Guy (profile) says:

Re: Re: Re: Mass Extinction Event

And cars worked fine without such trifles as shocks, airbags, radios, heating/air-conditioning, engines capable of allowing the car to move faster than a horse could run… guess all of those could be tossed and we’d be no worse for the wear, right?

Sure cars might not be as useful if such features were removed, and they certainly wouldn’t be as comfortable, but the sun rose and set before we had those features, so I’m sure it’ll do the same if they were removed.

Also, I do find it funny that you seem to be defending the idea that comments could be gotten rid of and nothing of value would be lost… in a comment that would be silenced. Unless of course you yourself believe that you could be barred from commenting, and nothing of value would be lost, in which case I suppose at least you’d be honest rather than a hypocrite.

That One Guy (profile) says:

Re: Re: Re:3 Mass Extinction Event

Yes, of course, traffic, I mean jeesh, what site wants more of that? Clearly less of that would be great.

So I take it then all your comments can be safely judged to add nothing of value, and can be removed without any issue then? I mean, it’s nice of you to admit that your comments add nothing to any discussions, and nothing would be lost if they were silenced, but some of us actually get something out of discussions held on sites like this, so we actually care about the idea that comments could be removed from sites due to keeping them being too legally risky, thanks to some idiot judges.

Just because you apparently add nothing to, and get nothing from, sites that allow commenting, doesn’t mean others don’t. If you truly want to back up what seems to be your position, stop posting, as every post you make undercuts the idea that you think nothing of value is added from comments. Either you do believe that you have something to add, or something to gain, from being involved in a site, or you don’t, and you’re wasting everyone’s time including your own.

Anonymous Coward says:

i dont understand what is happening in the EU. one minute you get a ruling like this that makes no sense, then you read the EU is taking Facebook to court over privacy issues. on top of that, the next thing is governments are not only spying on citizens, the courts have told them it is illegal, but do nothing to those governments that ignore the ruling, like the UK has done, but then sets out something like this that is going to cause some mega problems! this seems to be another one of those ‘we’ll do what we can to help the rich’ rulings, like the ‘Right to be forgotten’!!

That One Guy (profile) says:

Re: What's next?

Oh absolutely.

That’s why next on the agenda(after forcing the postal service to open every package and read every letter), is holding the phone companies personally responsible for every call made or message sent via their services, and forcing them to record and go through and pre-screen everything unless they too want to be held accountable should something slip through.

(I really wish the above was sarcasm, and not just taking the arguments that sites should be held accountable for the comments made by visitors, and applying said arguments elsewhere)

Anonymous Coward says:

Profanity and society

It is interesting times. Profanity has become the way of life for many (including commenters and article writers on this sight.

What does profanity indicate about the person or with its general acceptance by society, what does it indicate about society?


!). It is a form of stuttering?
@). It indicates an inability to articulate clearly the conceptual basis for the individual’s argument.
#). It indicates the lack of respect of one individual for another, even though the individual in question does not like being disrespected themselves.
$). Society no longer expects any reasoned and intelligent discussion about matters at hand.

Let’s see how long the profane take to respond. Starting now.

Uriel-238 (profile) says:

Re: Profanity and society

Profanity is emotional punctuation. It says I am angry! implicitly about the topic at hand.

Misuse comes from when rage is going to distress others (e.g. the company of small children and infirm elderly) or when one doesn’t understand that this is what profanity means.

Also, it retains potency when used infrequently, to be a point of contrast, kinda like exclamation bangs and emphatic adverbs (e.g. very, extremely, immensely)

Anonymous Coward says:

Re: Re: Profanity and society

You’re the first – yeah.

Let’s look at your comment. Well your first paragraph is wrong on the whole, even though right in part. There are a small number of occasions where profanity is an “emotional” punctuation. It most certainly rarely says “I am angry about any topic at hand.

You just need to work in a machine shop, plumbing, F&T, building site or even in a lot of offices and you will see its common everyday non-emotional use. Walk down the street and you’ll hear it everywhere. If you actively filter out the profanity, you’ll see how little actual discussion, conversation, logically thinking is going on.

One workshop I was in, basically every sentence from each of the full-timers had profanity every second or third word. Until I filtered it out, it was a distraction from what was being said. After filtering, there wasn’t much being said.

Now who’s next?

Anonymous Coward says:

Re: Re: Re:2 I was opviously mistaken.

No, you did not land in any snare. But you have missed my point.

Profanity can on very rare occasions have the effect of, as you stated, expressing extreme emotional distress. As an example, many years ago, a friend who never used profanity of any kind in any conversation with anyone, was heard saying on one occasion only a very mild profanity. At this point, everyone who heard him, knew, without a doubt that something terrible had happened. This was the case, something terrible had happened. None of us ever heard another such word pass his lips. He even apologised for his utterance and for his lack of self-control.

My point is that profanity, as it is currently used by many individuals, has little to show for it. It is, if you like, the lowest common denominator for societal communication, the equivalent of cavemen grunting. It doesn’t add anything to the discussion or conversation. If anything, it significantly lessens the standing of the person uttering the profanity.

Your particular view about it being a significant indicator of emotional expression does not match the use of profanity within society today.

You, at least, have expressed your view succinctly with no profanity in your response and have added to the conversation. That is to your commendation. I was expecting some responses that were full of profanity, which have as yet not eventuated.

Anonymous Coward says:

Re: Re: Re:3 I was opviously mistaken.

The use of profanity can serve as a form of code switching, and is a way to flag the norms of a particular group environment. The light smattering of expletives used in TD posts signal that the articles are opinion/analysis pieces designed to promote an informal discussion where the exchange of ideas is more important than self-censorship in the name of propriety.

It might make sense to ask that an employer enact a code of etiquette; it doesn’t make sense to walk into a dive-bar down by the docks and tell a bunch of merchant marines to watch their manners. Welcome to The Rusty Anchor. Have a drink or leave.

John Fenderson (profile) says:

Re: Re: Re:3 I was opviously mistaken.

“My point is that profanity, as it is currently used by many individuals, has little to show for it.”

That’s your point? Then I honestly don’t understand why you felt it necessary to say, and to use so many words to say it. If profanity has little to show for it, then why is it even worth discussing?

I would counter that since it upsets you so much, your comment is demonstrating that profanity has a lot of rhetorical power, and therefore has a point.

Anonymous Coward says:

Ruling with wide implications

The post office has so far not been held responsible for the content of mail, since they are only the carriers.
With this ruling, the mail carrying institutions of Europe must brace themselves, for they too will now be held accountable for not anticipating what may potentially be written in a letter.

fjpoblam (profile) says:

Websites must encourage—indeed, demand—politically correct speech

Freedom, schmeedom. The new norm must be “censorship-challenged”. Moderators need carefully to be trained, and meet in committee to approve each and every post prior to publication. Committee meetings must of course be recorded for periodic independent auditing by impartial international tribunals appointed by recognized authorities. (Source of recognition yet to be determined.) Bureaucracy. Our friend in these difficult (easiness-challenged) times. /sarcasm

Anonymous Coward says:

While I agree that this is a terrible ruling, I don’t think the consequences are quite as dire as Mike and many of the commenters here put it.
Yes this is a bad ruling and yes it comes from one of the highest courts in Europe. But you need to remember that this isn’t the US. In Europe as in the Europian Union (I know the UK differs here, but for EU law as well as most of continental Europe) there is no case law.
This isn’t the same as a ruling from the Supreme Court that sets on how the law is interpreted in the Future. Yes it can be used as a guideline, but in Germany for example courts have the explicit right to rule differently than the ECHR if they deem it necessary.
Although we already have pretty terrible liability laws and are in dire need of something ala Section 230 I don’t think this ruling will have much effect on local laws. So far this ruling hasn’t even appeared in any of the major news publications I read in Europe. How could it chill free speech if people doesn’t even know it exists?

Yes this is a terrible ruling but since we don’t have case law it’s effects aren’t nearly as terrible as some fear.

Anonymous Coward says:

because commenters are anonymous and anonymity is important — and because it’s difficult to identify anonymous commenters — well, fuck it, just put the liability on the site instead.

Aclually it’s more along the lines of :because commenters are anonymous and you can’t effectively punish them, just put the liability on the site instead since they probably have more money anyway

Reality bites (profile) says:

What else could be expected from a judge

They are simply the largest most odorous turd to float to the top of the legal cesspool. You could add up all their IQ’s world wide and still not hit double digits. Corporate whores do as their pimp demands or they get beat. They aren’t capable of coherent thought nor courage to stand up.

RM Global Risk (user link) says:

People need to be accountable

Freedom comes with responsibility and accountability. Nothing is ‘free’. In the U.S. you have the freedom to have your own thoughts and can live how you want as long as you’re not infringing on another’s rights and it’s not illegal. No different on the internet. We all need to be more COMPASSIONATE how we share what we write. Nothing wrong with that. It’s the true ass hats that need to change. Step up and take responsibility for things that you may have written that overstepped the line and think about WHAT AND HOW you’re writing. I hope it comes back to bite ALL you jerks in the ass in the U.S. Can’t wait for that day!!

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