Websites Liable For Anonymous Comments? European Court Upholds Defamation Case Against Estonian News Portal

Score another victory for trolls.

On Thursday, the European Court of Human Rights ruled that a major Estonian news website can be held liable for incendiary comments made by its users. The ruling by seven European judges upheld fines levied against Delfi AS, one of Estonia’s top news portals, which argued that the fines violated its freedom of expression.

The case concerned a 2006 news article about a ferry company -- not named in the judgment summary -- whose decision to change its ferry routes came under criticism by local commuters. Commenters on the article posted numerous offensive remarks about the ferry operator and its owner, who in turn sued Delfi for defamation. An Estonian court sided with the ferry operator and fined Delfi 5,000 kroons, approximately $426. The news company appealed the decision, arguing that its role as an Internet portal is “passive and neutral,” but the Estonian Supreme Court dismissed the appeal. Thursday’s chamber judgment found that Estonian courts acted within their rights:

“The Court held that the finding of liability by the Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts was not excessive.”

The incendiary nature of the comments, as well as the topic of the article itself, played a role in the judges’ decision. The comments included not just insults and vulgarity, but also threats. The judges wrote that, based on the controversial subject matter of the article, Delfi should have anticipated the reaction and “exercised an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation.”

The judges’ logic flies in the face of conventional wisdom that websites can take a hands-off approach to anonymous user comments without consequences. In the United States, news organizations are protected by the landmark Section 230 in the Communication Decency Act of 1996, which prohibits websites from being held liable for content created by users. Comment sections, even moderated ones, fall under this category, as courts have upheld on numerous occasion. (Most recently, an Illinois appellate court found that the privately held Small Newspaper Group Inc. did not qualify as “publishers” of anonymous comments posted to one of its news websites, and therefore could not be held liable for them.) In Europe, such protections have not been as thoroughly established, although the judges wrote that they considered the implications of ruling against Delfi.

The judges’ ruling comes at a time when the value of comments sections is being hotly debated on both sides of the Atlantic. In February, the U.K. Society of Editors made an effort to codify a set of best practices for comment moderators. In August, the Huffington Post unit of AOL Inc. (NYSE:AOL) said that it would no longer allow anonymous comments, with Arianna Huffington citing an atmosphere of aggressive, ugly trolls, the. The next month, Popular Science, owned by the Swedish media group Bonnier AB, said it was doing away with its online comments altogether. One justification for the decision: The real conversion is happening on Twitter.

Of course, there are plenty of trolls there, too, but at least you can block them.

Read the European court’s full judgment summary here.

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