Posts on the Internet : freedom of speech and e-reputation

The Grand Chamber of the European Court of Human Rights (ECHR) delivered a judgment on June 16, 2015 regarding the liability of the owner of an Internet news portal that enables webusers to comment on the published articles.

This recent decision offers an opportunity to address the following question :

Can the owner of a website, its editor or host be held liable for comments posted on the website by webusers, known as « posts » ?

In this case, the comments posted were insulting and aimed to damage the reputation of a ferry company. The owner of the ferry company considered that he had suffered from these insulting comments which harmed the reputation of his company on the Internet. He brought an action against DELFI, the company which owns the Internet news portal, before Estonian courts to claim damages and request the removal of the offensive comments.

In 2008, a judgment was given in his favor as the comments were held defamatory and he was awarded damages.

The company DELFI appealed against this sanction by arguing that it was only a technical intermediary with a passive role. Moreover, it considered that the deletion of the posts violated the freedom of speech of the webusers.

Estonian courts upheld the decision that the owner of the Internet news portal was liable for these publications as DELFI was not only a technical intermediary with a passive role within the meaning of the Directive 2000/31/CE on electronic commerce. Indeed, it could verify the comments and delete them.

The question asked to the ECHR was wether the deletion of the comments violated the freedom of speech guaranteed by Article 10 of the European Convention on Human Rights? Is such an interference justified?

Article 10 of the European Convention on Human Rights enables its signatory states - which include all the member states of the European Union - to provide legal restrictions to the freedom of speech which « are necessary in a democratic society (…) for the protection of the reputation or rights of others ».

The ECHR decided that the sentence of the owner of the Internet news portal for the publication of the comments was a restriction to the freedom of speech that was justified and proportionate regarding especially the following points :

• The comments were particularly insulting, defamatory and threatening;

• The automatic filtering system and alert system of the website failed to prevent the publication of the comments;

• The authors of the comments could be anonymous;

• The company made profits from the publication of these messages;

• The sentence of the company by Estonian courts was reasonable (sentence to pay Euros 320).

In France, a constant case law distinguishes the level of liability of providers and technical intermediaries depending on the existence of an editorial control of the contents before or after their publication.

This case law applies Article 6.I.2 of the Law n° 2004-575 of 21 June 2004 for the Confidence in the Digital Economy (LCEN) which implements Article 14 of the Directive 2000/31/CE that takes into account the active or passive role of the person in charge of a website.

The host of a website, who does note exercise an active editorial control before contents are published on the website, is only liable for a publication if he failed to remove an offensive publication in a delay sufficiently brief after being notified of this publication. However, the editor of a website, who exercises a control of the contents before they are published on the website, is held liable for these contents from the moment they are published..

In France, if you are the owner of a website or you are in charge of online publications on a website which allows webusers to comment on these publications, it is strongly recommended to make sure that a contact feature is mentioned in the Terms of Use or legal notice of your website. This way, a webuser who feels harmed by a comment can ask you to remove it.

If you are the victim of offensive comments on the Internet and the editor or host of the website fail to remove the comments despite being notified via the website contact feature, a formal notice should be sent to notify the offensive comment and request its removal. Beware, in matters of defamation, the statutory limitation to bring an action, is of only three months as of the date of publication or discovery of the publication, pursuant to Article 65 of the Law of 29 July 1881 on the freedom of the press. If the website persists in leaving the publication, an action should be brought before the courts. The chosen pre-litigation and litigation strategy will depend on each case. Several elements have to be analyzed such as especially the nature of the published comments, the website, the existence or not of an forum, of a moderator, wether profits are made by the editor and/or the host of the website, and the assessment of damages incurred.