Your SlideShare is downloading. ×
Liability for User Generated Content on an Online News Platform: The Delfi Case
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×

Introducing the official SlideShare app

Stunning, full-screen experience for iPhone and Android

Text the download link to your phone

Standard text messaging rates apply

Liability for User Generated Content on an Online News Platform: The Delfi Case

351
views

Published on

Published in: Education, Business, Technology

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
351
On Slideshare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. LIABILITY FORLIABILITY FOR USER GENERATED CONTENTUSER GENERATED CONTENT ON AN ONLINE NEWS PLATFORMON AN ONLINE NEWS PLATFORM THE DELFI CASETHE DELFI CASE Dirk VOORHOOFDirk VOORHOOF INGER HØEDT-RASMUSSENINGER HØEDT-RASMUSSEN Ghent UniversityGhent University Copenhagen UniversityCopenhagen University
  • 2. Somewhere in EuropeSomewhere in Europe EstoniaEstonia Mainland - islandsMainland - islands Ice roadsIce roads
  • 3. It started with anIt started with an article in an onlinearticle in an online newspaper : Delfinewspaper : Delfi Should the iceroadsShould the iceroads as public roads be kept open ?as public roads be kept open ? http://http://www.youtube.com/watch?v=z_Y6ijrnn8swww.youtube.com/watch?v=z_Y6ijrnn8s http://http://www.youtube.com/watch?v=MdESlRLELns&gl=BEwww.youtube.com/watch?v=MdESlRLELns&gl=BE
  • 4. Delfi AS is the owner of Delfi, an Internet news portal that publishes up to 330 news articles a day. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania User Generated Content (UGC) http://www.delfi.eehttp://www.delfi.ee// + disclaimer on liability UGC+ disclaimer on liability UGC + “Notice And Take Down”-system (NATD)+ “Notice And Take Down”-system (NATD) + request no hate speech, no insult …+ request no hate speech, no insult … + technical filtering obscenities+ technical filtering obscenities
  • 5. The news article on Delfi In 2006 Delfi published an article on its portal under the heading ‘SLK Destroyed Planned Ice Road’ (SLK = Saaremaa Shipping Company) Mr. L. is a board-member and majority shareholder (the “face” of SLK) – well-known for his opposition against a bridge and considered responsible for the (annual) ice breaking of winter routes
  • 6. Angry and offensive online comments The article attracted 185 comments. About 20 of them contained personal threats and offensive language directed against L.
  • 7. More than one month later Mr. L. requested for removal of 20 comments and claimed 32.000 EUR as compensation of damages (reputation) Comments were manifestly defamatory and incited to hatred or even to violence against Mr. L. Delfi immediately removed the comments
  • 8. Crucial question regarding damages Who’s liable - authors/users having posted the insulting hate speech on the news forum (content provider?) - Delfi for having created a platform for UGC (as ISP or as online publisher?)
  • 9. Directive E CommerceDirective E Commerce Section 4: Liability ofSection 4: Liability of intermediaryintermediary service providersservice providers Article 12-15Article 12-15
  • 10. Directive E CommerceDirective E Commerce Section 4: Liability of intermediary serviceSection 4: Liability of intermediary service providers (ISP), Article 12-15providers (ISP), Article 12-15 – Aim to exempt ISP’s from liability underAim to exempt ISP’s from liability under certain conditionscertain conditions – Otherwise: risk of chilling effectOtherwise: risk of chilling effect + financial/economic impact+ financial/economic impact
  • 11. Directive E CommerceDirective E Commerce  Section 4: Liability of intermediary serviceSection 4: Liability of intermediary service providers restricted, Article 12-15providers restricted, Article 12-15 – HorizontalHorizontal derogation of liabilityderogation of liability - Criminal Law- Criminal Law - Civil Law- Civil Law - Commercial Law- Commercial Law - Advertising Law/Fair Trade Practices- Advertising Law/Fair Trade Practices - Copyright Law- Copyright Law
  • 12. Directive E CommerceDirective E Commerce Art. 12: Mere ConduitArt. 12: Mere Conduit = transmission in network, access to network= transmission in network, access to network The ISP is not liableThe ISP is not liable for the information transmittedfor the information transmitted if:if: a) does not initiate the transmissiona) does not initiate the transmission b) does not select the receiver of the serviceb) does not select the receiver of the service c) does not select/modify the informationc) does not select/modify the information contained in the transmissioncontained in the transmission
  • 13. Directive E CommerceDirective E Commerce Art. 13: CachingArt. 13: Caching Activity of ISP of automatic, intermediate andActivity of ISP of automatic, intermediate and temporary storage of information for sole purposetemporary storage of information for sole purpose of making more efficient the transmissionof making more efficient the transmission ISP is not liableISP is not liable for the information transmitted iffor the information transmitted if a) does not modify the informationa) does not modify the information (..)(..) e) the provider acts expeditiously to remove or toe) the provider acts expeditiously to remove or to disable access to the information it has storeddisable access to the information it has stored uponupon actual knowledgeactual knowledge that thethat the initial sourceinitial source has been removed/access has been disabled,has been removed/access has been disabled, OROR when awhen a court or administrative authoritycourt or administrative authority hashas ordered such removal or disablementordered such removal or disablement
  • 14. Directive E CommerceDirective E Commerce Art. 14: HostingArt. 14: Hosting = activity of ISP of the storage of information= activity of ISP of the storage of information provided by and at request of a recipient of aprovided by and at request of a recipient of a serviceservice The ISP is not liableThe ISP is not liable for the information transmittedfor the information transmitted if:if: a) does not have actual knowledge of illegal activitya) does not have actual knowledge of illegal activity or informationor information b) the provider, upon obtaining such knowledge orb) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or toawareness, acts expeditiously to remove or to disable access to the informationdisable access to the information (NATD-procedure)(NATD-procedure)
  • 15. Directive E CommerceDirective E Commerce Art. 15: No generalArt. 15: No general obligation to monitorobligation to monitor Member states shall not imposeMember states shall not impose a general obligation ona general obligation on providers to monitor theproviders to monitor the information which theyinformation which they transmit or store, nor atransmit or store, nor a general obligation to seekgeneral obligation to seek actively facts or circumstancesactively facts or circumstances indicating illegal activityindicating illegal activity
  • 16. Directive E CommerceDirective E Commerce Art. 15: No general obligation toArt. 15: No general obligation to monitor, butmonitor, but Member states may establish obligations forMember states may establish obligations for ISP’s promptly to inform competent publicISP’s promptly to inform competent public authorities of alleged illegal activities orauthorities of alleged illegal activities or information provided by recipients of theirinformation provided by recipients of their service or obligations to communicate theservice or obligations to communicate the competent authorities, at their request,competent authorities, at their request, information enabling the identification ofinformation enabling the identification of recipients of their servicesrecipients of their services
  • 17. Directive E CommerceDirective E Commerce Art. 12-14Art. 12-14 Restrictions on liability of ISP’s do notRestrictions on liability of ISP’s do not affect the possibility for a court oraffect the possibility for a court or administrative authority of requiringadministrative authority of requiring the ISP to terminate or prevent anthe ISP to terminate or prevent an infringement (or establishinginfringement (or establishing procedures governing the removal orprocedures governing the removal or disabling of access to information)disabling of access to information)
  • 18. Directive E CommerceDirective E Commerce Art. 16: Codes of conductArt. 16: Codes of conduct Member states shall encourageMember states shall encourage - drawing up of codes of conduct at- drawing up of codes of conduct at Community level by trade, professional orCommunity level by trade, professional or consumer organisationsconsumer organisations - esp. codes of conduct regarding the- esp. codes of conduct regarding the protection of minors and human dignityprotection of minors and human dignity
  • 19. Council of Europe Declaration 2003Council of Europe Declaration 2003 Freedom of Communication on the InternetFreedom of Communication on the Internet 1. Content rules for the Internet1. Content rules for the Internet No further than those applied to other meansNo further than those applied to other means of content deliveryof content delivery 2. Self- or co-regulation2. Self- or co-regulation States should encourage…States should encourage… 3. Absence of prior state control3. Absence of prior state control
  • 20. Council of Europe Declaration 2003Council of Europe Declaration 2003 Freedom of Communication on the InternetFreedom of Communication on the Internet 4. Removal of barriers to the participation of individuals4. Removal of barriers to the participation of individuals …… foster access, afordable, no discriminationfoster access, afordable, no discrimination 5. Freedom to provide services via the internet5. Freedom to provide services via the internet 6. Limited liability of service providers6. Limited liability of service providers No general obligation to monitorNo general obligation to monitor No liability if only transmissionNo liability if only transmission Notice and take down or disable accessNotice and take down or disable access when aware of illegal contentwhen aware of illegal content Possibility of issuing injunctionsPossibility of issuing injunctions
  • 21. Council of Europe Declaration 2003Council of Europe Declaration 2003 Freedom of Communication on the InternetFreedom of Communication on the Internet 7: Anonymity7: Anonymity In order to ensure protection against online surveillance andIn order to ensure protection against online surveillance and to enhance the free expression of information and ideas,to enhance the free expression of information and ideas, member states should respect the will of users of themember states should respect the will of users of the Internet not to disclose their identity.Internet not to disclose their identity. This does not prevent member states from taking measuresThis does not prevent member states from taking measures and co-operating in order to trace those responsible forand co-operating in order to trace those responsible for criminal acts, in accordance with national law, thecriminal acts, in accordance with national law, the Convention for the Protection of Human Rights andConvention for the Protection of Human Rights and Fundamental Freedoms and other international agreementsFundamental Freedoms and other international agreements in the fields of justice and the policein the fields of justice and the police..
  • 22. DelfiDelfi Delfi liable for offensive comments postedDelfi liable for offensive comments posted by readers – UGC?by readers – UGC? IF DELFI was acting as an ISP – HostIF DELFI was acting as an ISP – Host provider – EU Law …provider – EU Law … Exempted from liability ?Exempted from liability ?
  • 23. Delfi arguments : ISP !Delfi arguments : ISP ! UGCUGC Automatic download, not edited, not moderatedAutomatic download, not edited, not moderated NATD system was installed and functionedNATD system was installed and functioned + technical filtering of obscene words+ technical filtering of obscene words + victim of defamation could notify+ victim of defamation could notify Delfi argued that it acted as an ISP - storage host whoseDelfi argued that it acted as an ISP - storage host whose role was merely technical, passive and neutralrole was merely technical, passive and neutral Portal exercised limited control over the publication ofPortal exercised limited control over the publication of comments and applied NATD in accordance with ISP-comments and applied NATD in accordance with ISP- responsibilityresponsibility
  • 24. Estonian court decisionsEstonian court decisions County Court agreed and considered Delfi as ISP Delfi could not be considered the publisher of the comments, nor did it have any obligation to monitor them Overruled by Tallin Court of Appeal rejecting Delfi’s argument that it acted under EUrejecting Delfi’s argument that it acted under EU Directive 2000/31/EC on Electronic Commerce, asDirective 2000/31/EC on Electronic Commerce, as implemented by the Estonian Information Societyimplemented by the Estonian Information Society Services Act (ISS Act)Services Act (ISS Act)
  • 25. Tallin Court of Appeal and Estonian Supreme Court The measures taken by Delfi were insufficient to protect right to reputation of others. Delfi was a provider of content services rather than of technical services. Delfi had an economic interest in the comments and had acted similarly to a publisher of printed media. L. was free to choose against whom to bring the suit, in casu against Delfi. Delfi should have prevented the comments from having been published and failed to remove the comments on its own initiative.
  • 26. Tallin Court of Appeal and Estonian Supreme Court Delfi is not an ISP Delfi itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer that it was not liable for the content of the comments. An information society service provider, falling under that ISS Act and the Directive on Electronic Commerce, had neither knowledge of nor control over information which was transmitted or stored.
  • 27. Tallin Court of Appeal and Estonian Supreme Court Delfi is not an ISP A provider of content services, like Delfi, governs the content of information that was being stored, by integrating the comment environment into its news portal and invited users to post comments.
  • 28. Delfi liable, award of damages 320 EURDelfi liable, award of damages 320 EUR What to do ? Important principle! Introduce a case at European level because Estonian authorities had breached European law? Which instance ?
  • 29. Delfi liable, award of damages 320 EURDelfi liable, award of damages 320 EUR Brussels, Luxembourg or Strasbourg? Non-application of E Commerce Directive? Complaint European Commission ? Case to CJEU ? Breach of freedom of expression Art. 11 EU Charter ? Art. 10 ECHR ?
  • 30. Delfi AS v. EstoniaDelfi AS v. Estonia Delfi logded complaint in Strasbourg ECtHR for alleged violation of Article 10 ECHR Was interference - prescribed by law - pursuing a legitimate aim - “necessary in a democratic society” ?
  • 31. Delfi AS v. EstoniaDelfi AS v. Estonia ECtHR 10 October 2013ECtHR 10 October 2013 First SectionFirst Section ECtHR accepted thatECtHR accepted that the domestic courts had rejectedthe domestic courts had rejected the portal’s argument that, under EU Directivethe portal’s argument that, under EU Directive 2000/31/EC on Electronic Commerce, its role as an2000/31/EC on Electronic Commerce, its role as an Internet society service provider or storage host wasInternet society service provider or storage host was merely technical, passive and neutral,merely technical, passive and neutral, finding thatfinding that the portal exercised control over the publicationthe portal exercised control over the publication of comments.of comments.
  • 32. Delfi AS v. EstoniaDelfi AS v. Estonia Delfi complained that being heldDelfi complained that being held liable for the comments of its readers breached itsliable for the comments of its readers breached its right to freedom of expression – Art. 10 ECHRright to freedom of expression – Art. 10 ECHR The Court held, unanimously, that there had beenThe Court held, unanimously, that there had been no violation of Article 10no violation of Article 10 (freedom of expression)(freedom of expression) of the Convention. It held that the finding of liabilityof the Convention. It held that the finding of liability by the Estonian courts was aby the Estonian courts was a justified andjustified and proportionate restrictionproportionate restriction on the portal’s right toon the portal’s right to freedom of expression.freedom of expression.
  • 33. Delfi AS v. EstoniaDelfi AS v. Estonia No violation of Article 10No violation of Article 10 in particular, because:in particular, because: - the comments were highly offensive;- the comments were highly offensive; - the portal failed to prevent them from becoming- the portal failed to prevent them from becoming public, profited from their existence, but allowed theirpublic, profited from their existence, but allowed their authors to remain anonymous;authors to remain anonymous; - and, the fine imposed by the Estonian courts was not- and, the fine imposed by the Estonian courts was not excessive.excessive.
  • 34. Delfi AS v. EstoniaDelfi AS v. Estonia Judgment First Section ECtHR 10 October 2013Judgment First Section ECtHR 10 October 2013 Request for referral by Delfi + support by 70Request for referral by Delfi + support by 70 organisations in sector of media, journalism, internetorganisations in sector of media, journalism, internet and human right (8 January 2014)and human right (8 January 2014) Panel of 5 judges : serious matter ECHR / society.Panel of 5 judges : serious matter ECHR / society. On 17 February 2014 the case was referred to theOn 17 February 2014 the case was referred to the Grand ChamberGrand Chamber The Court will be holding a Grand ChamberThe Court will be holding a Grand Chamber hearing in this case on 9 July 2014 at 9.15 a.m.hearing in this case on 9 July 2014 at 9.15 a.m.
  • 35. Is there a duty to pre-monitor UGC on online media fora? - Economic and financial aspects - Technical aspects - Democracy, Freedom of Information - Right of anonymity? - European perspective (28 Member States) - International, global perspectives
  • 36. “Duties of care” ? Delfi took no specific measures such as - a requirement of prior registration of users before they were allowed to post comments - monitoring the (anonymous) comments before making them public - or speedy review of comments after posting
  • 37. Legal obligation or self-regulation: same impact for the users ? (pre-monitoring) Why making a problem of pre-monitoring UGC as a consequence of liability based on the law, while if Delfi would pre-monitor on its own initiative there would be no legal discussion !?
  • 38. Delfi AS v. Estonia – more infoDelfi AS v. Estonia – more info http://inforrm.wordpress.com/2013/10/29/treating-a-news-portal-as-publisher-http://inforrm.wordpress.com/2013/10/29/treating-a-news-portal-as-publisher- of-users-comment-may-have-far-reaching-consequences-for-online-freedom-of-of-users-comment-may-have-far-reaching-consequences-for-online-freedom-of- expression-dirk-voorhoof/expression-dirk-voorhoof/ http://inforrm.wordpress.com/2014/01/15/news-delfi-v-estonia-liability-for-user-http://inforrm.wordpress.com/2014/01/15/news-delfi-v-estonia-liability-for-user- comments-applicant-seeks-referral-to-grand-chamber/comments-applicant-seeks-referral-to-grand-chamber/ http://www.psw.ugent.be/cms_global/uploads/publicaties/dv/REQUEST%20FORhttp://www.psw.ugent.be/cms_global/uploads/publicaties/dv/REQUEST%20FOR %20REFERRAL%20TO%20THE%20GRAND%20REFERRAL%20TO%20THE%20GRAND %20CHAMBER_DELFI_2014%2001%2008%20FINALDV.pdf%20CHAMBER_DELFI_2014%2001%2008%20FINALDV.pdf http://www.mediadefence.org/sites/default/files/Delfi%20Support%20Letter.pdfhttp://www.mediadefence.org/sites/default/files/Delfi%20Support%20Letter.pdf http://inforrm.wordpress.com/2014/02/18/news-court-of-human-rights-grand-http://inforrm.wordpress.com/2014/02/18/news-court-of-human-rights-grand- chamber-to-hear-delfi-case/#more-25347chamber-to-hear-delfi-case/#more-25347