European Court Rules Websites Liable for User Comments

There’s shocking news out of Europe that is likely to have a big influence on how we use the Internet, and on liability for businesses maintaining websites. Global journalists are reporting that the European Court of Human Rights in Strasbourg, Germany has come to a ruling that indicates website operators – specifically Delfi in this case – can be liable for third-party commenting on a site that constitutes defamation. This has been looked at as a sort of landmark in new kinds of Internet regulation that can affect what’s become a kind of “wild west” of popular communications.

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At the center of this case and others is the idea that what might be seen as illegal content, or speech that damages, must be attached to a responsible party. For instance, lawyers and others have been looking at what constitutes hate speech, and how it is controlled online. Of course, there’s a need to protect the common good, but do some content controls go too far? The new ruling suggests that there might be a fairly widespread spectrum of liabilities for those who allow third party comments on a site, and that governments may be prepared to act broadly to punish those who post or allow some kinds of content.

Quite aggressive court rulings might lead to a sort of situation where more web operators operate cautiously, and are less willing to host the views and insights of individual posters. Simply put, if courts find these businesses and other parties to have liability, they will cover themselves by disallowing comments or tightly controlling any type of comment that could be seen as objectionable. Experts have described this as having a kind of “chilling effect” on free speech on the Internet. However, others have pointed to the limits of free speech, and the need to protect the common good in situations where comments become unlawful, dangerous, abusive or hurtful.

Finding Responsible Parties

One part of the rationale that was given for the recent ruling was that, because of the low possibility of prosecuting individual ‘commenters’, the court found that it might be viable to go after the website operators themselves. To many of those who are grounded in the ways that Internet broadcasting works, this might seem more than a little unfair. Where the responsibility gets shifted from the individual poster to the website, there’s the mandate that website operators must comb through any sites or pages that allow for commenting and carefully prune them to omit liability of various kinds.

All of this takes work, and the question of whether it would be done to the standard of a regulatory body or other third-party shows how hard it might be to fully comply. There’s a limit to what is feasible on the part of a web operator when it comes to scrubbing all undesirable content from a site. It comes down to how the court will specify exactly what type of maintenance activities will cover the liability of a website owner, and that’s something that business owners and net consumer advocates are looking at closely, along with hot-button issues like the NSA’s use of metadata.

There’s also the idea of free speech where some have invoked Article 10 rights, part of the European convention on human rights, regarding the free transmission of free speech. While this individual ruling may not have any direct impact on European Union law, the sea change that it represents may require different strategies for tomorrow’s Internet. It’s important to keep looking at these new developments when assessing the standards that will “run” Internet operations, and how these reflect on the goals of a society and its justice system.

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