Court Chases Anonymous Trolls Back Under Bridge

Michael Hedges June 22, 2015 - Follow on Twitter

The internet is a wonderful thing. Online news portals, and others, have discovered a certain bonus from a free and open digital pipeline. Unlike ancient letters to the editor very simple and inexpensive software solutions afford the public at large access points for sharing their views and opinions. Most are thoughtful, some irritating, a few repulsive. Web traffic certainly doesn’t suffer from trolls.

Online news portals offering readers easy and anonymous fora to comment on everything in every way are consulting lawyers after last week’s ruling by the Grand Chamber of the European Court of Human Rights. The specific case evolved from a 2006 lawsuit against Estonian news portal delfi.ee by a private individual, owner of a ferry company that made news in Estonia for changing routes, insulted and threatened by anonymous trolls. The 17 justices of the Grand Chamber (GC), the court’s ultimate legal authority, affirmed previous decisions that the troll comments were, indeed, hate speech, and news portals hosting such have ongoing liability.

Delfi.ee removed at the delayed request of the individual the comments deemed offensive tracked on its portal and refused a demand for damage compensation. An Estonian court, then, awarded compensation, though a sum far less than the claimant demanded. Delfi claimed immunity from liability under the European Union’s e-Commerce Directive as a third-party publisher. That was dismissed and the publisher sought relief under Article 10 of the European Convention on Human Rights, the right to free expression. The European Court of Human Rights (ECtHR), in chamber, dismissed that claim in 2013 and, as its right, Delfi appealed to the full GC. By treaty ECtHR judgments are recognized and enforced by the 47-member Council of Europe.

The Grand Chamber judgment left little doubt that case-law regarding “manifestly unlawful” hate speech and the internet is mounting. “The ability of a potential victim of hate speech to continuously monitor the internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments,” said the GC decision (June 16). “In our view, member States may hold a news portal, such as Delfi, liable for clearly unlawful comments such as insults, threats and hate speech by readers of its articles if the portal knew, or ought to have known, that such comments would be or had been published on the portal. Furthermore, member States may hold a news portal liable in such situations if it fails to act promptly when made aware of such comments published on the portal.”

The judgment also recognized that standards applied to new and traditional media can be different but, more broadly, widely used “notice and take-down systems” are not sufficient. “To enable technically the publication of extremely aggressive forms of defamation, all this due to crass commercial interest, and then to shrug one’s shoulders, maintaining that an Internet provider is not responsible for these attacks on the personality rights of others, is totally unacceptable.”

The European Union’s e-Commerce Directive (2000) affords internet portals with limited liability as “mere conduits” of communication. The Court of Justice of the European Union (CJEU) and the European Court of Justice (ECJ) have consistently interpreted the e-Commerce Directive as protecting freedom of expression and freedom of speech by preventing copyright holders from imposing filters on ISPs and social media portals. In the SABAN v. Netlog decision (2012) the CJEU determined that social media portals “cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work.”

Supporters of a free, open and uncensored internet, not to forget unencumbered internet business, quickly rose to express themselves. “News website deserves a slap for its hate-filled commentards, say 'ooman rights beaks,” headlined the oft-cynical UK IT news portal The Register (June 16). The Brits, of course, want to ditch their own human rights commission, leave the European Union and vacate the Eurovision Song Contest.

“The ruling creates a worrying precedent that could force websites to censor content,” said digital rights advocate Access Now policy counsel Peter Micek, quoted by Intellectual Policy Watch (June 16). “It also creates a perverse incentive for websites to discourage online anonymity and freedom of expression. Despite warnings from groups defending vulnerable internet users, as well as from large media companies, the Court has dramatically shifted the internet away from the free expression and privacy protections that created the internet as we know it.” New York-based Access Now receives funding from Mozilla, Microsoft, Google, Yahoo and Facebook as well as the Swedish International Development Cooperation Agency (SIDA).

“Insults, even baiting and threats are everywhere you look on the internet,” said German IT support group BITKOM chief executive Bernhard Rohleder, quoted by tagesspiegel.de (June 16). “In the digital world as in the analogue world you can be punished.”

Requiring online news portals and other websites to “proactively” curtail internet trolls would be, at the very least, work-intensive. Several well-known portals have ended anonymous posting while others fight in court to hang on to the web traffic it creates. It’s doubtful internet trolls will revert to soapboxes in the village square.

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