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Summary:

An Estonian court did not violate a local news site’s right to free expression by holding it liable for offensive anonymous comments made under one of its stories, the ECHR has ruled.

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The European Court of Human Rights (ECHR) has issued a decision that anti-censorship campaigners say could spell an end to anonymous website comments in the EU.

The judgment came through on Thursday in the case of Delfi AS v. Estonia. Delfi is an Estonian news site that had been found liable by a court in that country for offensive comments posted by anonymous users under one of its stories – it went to the ECHR claiming this violated its right to freedom of expression, but the human rights court disagreed.

This all traces back to the start of 2006, when Delfi carried a story about a ferry company that had changed its routes in a way that delayed the opening of new ice roads to various islands. Enraged readers wrote nasty things about the ferry firm, which successfully sued Delfi, winning around €320 ($434) in damages.

Having established that the comments were defamatory and Delfi should have expected that, given the nature of the article, the ECHR’s ruling (which can still be appealed) noted that the comments had not been taken down by Delfi’s automated system for catching naughty words, nor by its notice-and-take-down system.

Now here comes the crucial bit for online publishers. Although Delfi’s site was clear that commenters were themselves liable for what they wrote, which would theoretically have allowed the ferry company to sue them rather than Delfi, the commenters were anonymous.

And so, according to the ECHR’s subsequent statement:

“Making Delfi legally responsible for the comments was therefore practical; but it was also reasonable, because the news portal received commercial benefit from comments being made.”

Index on Censorship’s Padraig Reidy responded by saying : “It is difficult to see how any site would allow anonymous comments if this ruling stands as precedent.”

What it could stand as a precedent for is not entirely clear. The Delfi case was quite specific: it was largely about the legality of Estonia’s interpretation of EU free-expression law (which the court upheld); the comments were apparently merely offensive rather than whistleblowing or anything like that; the fine in question was small and found to be reasonable; and Delfi’s systems for picking up abusive comments seem to have failed in this instance. Also, the EU is not America – it has fairly good guarantees for free expression, but not as cast-iron as those stateside.

But nonetheless, particularly in the context of a wider questioning of anonymous comments, it’s not hard to see why Index on Censorship finds the ruling troubling. There can be great value in anonymous comments, and a ruling such as this may have a chilling effect if it leads publishers and site operators to decide the potential liability is too great.

  1. I think there is a real point here. The point is that there was a party that damaged by another party. Someone had to be liable.

    I wonder when the DMCA and all the other junk the US internet industry hides behind will crack under the same logical conclusions.

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  2. I think I’m missing something.

    Could someone highlight to me the difference in anonymity between:
    1) Someone posting as “Anonymous”
    2) Someone posting with a totally fictional name and email address

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    1. Another Fictional Name Friday, October 11, 2013

      Yeah, it’s just a bureaucratic difference, but allowing the “transfer” of the responsibility.

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  3. The thing here about anonymity is that while it is useful for reasoned dissent particularly against repressive regimes. It has conversely enabled the worst to come out of people in public forums everywhere. No sane person would say the racist, ugly, mean, homophobic, etc. things they say in public particularly in meat space for fear of ass kickery. Societal norms completely break down online because of the lack of having to be accountable for one’s nonsense. Identity at least in some minimal form is required for civilized discourse. Anonymity has its place but the competing problem of what happens with it suggests a two tier system of verified and unverified comments with some way for those who don’t want to be annoyed to just flip a switch and see only people willing to stand behind their words. If this pushes some improvement in cyber-civilization great but the worry is real and reasonable that it could go too far. However, arguing that today’s wild west lynch mob of lies, trolls, sock puppets, etc. is great is insane.

    Signed,
    Joe Nonymous

    p.s. I will pre-post “F-you d-bag” against myself given that would the appropriate follow-up to my post.

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    1. Because being in “meat space” stops people in real life from hurting and abusing each other
      Because people using real identies on Facebook stops them from ever saying anything uncouth

      Get over it, man. The removal of anonymity in communities is not a silver bullet to meanness, but a silver bullet to free expression. People will continue to be mean – and if site owners don’t like it, they can ban their IP address.

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  4. Anonymous User Friday, October 11, 2013

    Fu*k EU. Is nothing more than a Corporate Cartel.

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  5. Daniel Tunkelang Friday, October 11, 2013

    I haven’t examined the ECHR ruling. But It seems to me that either you require commenters to accept accountability for what they write (which at some level means no anonymity) or you allow them to be anonymous and accept that accountability as a publisher. Publishing anonymous comments and then not taking responsibility strikes me as irresponsible.

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    1. Valentine North Saturday, October 12, 2013

      All the source article has, is a press release written in English and nothing else. There’s some bad journalism somewhere …
      Started in 2006. Things have changed a lot since then, when it comes to laws, privacy and the internet. With only 320 euros as fine after 7 years, shows they know this as well.

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