When is Facebook liable for illegal content under the E-commerce Directive? CG v. Facebook in the Northern Ireland courts

Lorna Woods, Professor of Internet Law, University of Essex

Introduction

The ubiquity of social media platforms and their significance in disseminating information (true or false) to potentially wide groups of people was highly unlikely to have been in the minds of the European legislators when they agreed, in 2000, the e-Commerce Directive (Directive 2000/31/EC) (ECD). Facebook itself was launched only in 2004. Despite the changing times and technological capabilities, the Commission has decided not to revise the ECD, specifically its safe harbour provisions for intermediaries, in its current single digital market programme.  Although the ECD seems set to remain unchanged, the application of the safe harbour provisions raises many difficult questions which have not yet been fully answered at EU level by the Court of Justice. CG v. Facebook ([2016] NICA 54), a decision of the Northern Irish Court of Appeal, illustrates some of these difficulties and certainly raises questions about the proper interpretation of the ECD and its relationship with the Data Protection Directive.

Intermediary Immunity - Legal Framework

The ECD provides immunity from liability for certain ‘information society service providers’ (ISS providers) on certain conditions.  To gain immunity, the ISS provider must

-          be an ISS provider within the terms of the ECD; and

-          one of the following applies:

-          the provider is a ‘mere conduit’ (Art. 12 ECD);

-          provides caching services (Art. 13 ECD); or

-          provides hosting services (Art. 14 ECD).

Each one of these three categories provides for a different level of immunity, which seems connected with the level of knowledge the ISS provider is assumed to have of the problematic content. Here Article 14, which deals with hosting, is the relevant provision. It provides:

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.

The recitals to the ECD give more detail as to the scope of services protected by Article 14 and there is a certain amount of case law on this point, notably Google Adwords (Case C-236/08) and the Grand Chamber decision in L’Oreal v. eBay (Case C-324/09). Recital 42 has been pointed to by the Court in these cases as relevant for understanding the sorts of activities protected by the immunity. Recital 42 refers to services of a

mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.

The ECJ in Google Adwords referred to this as being ‘neutral’ (para 113-4). The Grand Chamber in its subsequent L’Oreal decision suggested that advice in optimising presentation would mean a provider was no longer neutral (para 114).

The provision protects relevant ISS providers from liability in relation to illegal content, provided they have no knowledge (actual or constructive) of the illegal activity or information, and that if they have such knowledge, they have acted expeditiously to remove it. In L'Oreal v eBay the Court of Justice provided a standard or test by which one can measure whether or not a website operator could be said to have acquired an 'awareness' of an illegal activity of illegal information in connection with its services, that is whether "a diligent economic operator would have identified the illegality and acted expeditiously".   The CJEU also held that an awareness of illegal activities or information may become apparent as the result of an investigation by the operator itself or where the operator receives notification of such activity.  Article 14 does not protect ISS providers from injunctions, or the costs associated with any such injunctions (see Recital 45).

Additionally, Article 15 specifies that, for those falling within Articles 12-14, Member States cannot impose a ‘general obligation’ to monitor content to determine whether content is illegal. There has been a considerable amount of dispute as to the relationship between this provision and the scope of immunity, especially given the requirements in L’Oreal.  Recital 40 notes that ‘service providers have a duty to act, under certain circumstances, with a view to preventing or stopping illegal activities’ and that the immunity provisions ‘should not preclude the development and effective operation, by the different interested parties, of technical systems of protection and identification and of technical surveillance instruments made possible by digital technology’. The Recitals also state:

(47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.

(48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.

The distinction between general monitoring and specific monitoring has yet to be fully elaborated, and is an issued much discussed in the context of intellectual property enforcement, especially as regards keeping pirated copies of materials down after taking it down in the first place.

Facts of CG

McCloskey opened a Facebook page in August 2012 entitled ‘Keeping Our Kids Safe from Predators’ in which he published details of individuals who had criminal convictions relating to sexual offences involving children.  This page was not subject to any privacy settings.  One individual who was so named brought action against Facebook and an interim injunction was issued requiring Facebook to remove the page and related comments, on the basis that the comments responding to the posting were threatening, intimidatory, inflammatory, provocative, reckless and irresponsible. This was the XY litigation. Immediately after the page was removed, McCloskey set up a new page, Predators 2. CG was identified on this page on 22 April 2013; his photograph was published and there were discussions about where he lived. Comments included abusive language, violent language – including support for those who would commit violence against CG and for the exclusion of CG from the community in which he lived.  The disclosure of CG’s residence was contrary to the position taken by the Public Protection Arrangements in Northern Ireland (PPANI), which took the view that such disclosure interferes with the rehabilitation process.

On 26th April 2013, CG’s solicitors wrote to Facebook and its solicitors in Northern Ireland, claiming the material was defamatory and that CG’s life was at risk. A hardcopy of Predators 2 page was enclosed. Facebook’s response was that CG should use the online reporting tool, but CG expressed a desire not to have to engage with Facebook. By 22 May 2013 Facebook removed all postings on Predators 2, but on 28 May, CG issued proceedings. Subsequently, CG’s solicitors wrote to Facebook complaining that the photograph had been shared 1622 times and that other Facebook users had included comments threatening violence. They identified the main URL, but not all such instances which Facebook then requested. This information was provided on 3rd and 4th December and removed on 4th or 5th December. A further reposting of the photographed by RS occurred on 23 December, stating that this was what a “pedo” looked like. A letter of claim was send to Facebook on 8th January 2014, identifying the relevant URLs and the page was taken down on 22 January 2014.  While CG accepted that the defamation claim was without merit, it was accepted that he was extremely concerned about potential violence as well as the effect on his family.

Judgment at First Instance

The trial judge had to deal with claims against McCloskey, as well as claims against Facebook.  The trial judge, having reviewed the evidence, concluded that McCloskey’s conduct constituted harassment of CG. The case against Facebook was based on the tort of misuse of private information. To find that there had been such misuse, there had to be a reasonable expectation of privacy in relation to the relevant information  which should take into account all the circumstances (relying on JR38 [2015] UKSC 42 and Murray v. Express Newspapers [2008] EWCA Civ 446). The judge also accepted the submission that the Data Protection Act, and specifically the category of ‘sensitive data’, provided a useful touchstone as to what information could be seen as private (see Green Corns Ltd v. Claverly Group Limited [2005] EWHC 958). The judge concluded that the use of a photograph or name in conjunction with information which could identify where CG lived and any information about his family members were private information. The judge considered that Facebook was put on notice of the problematic nature of the material by the XY litigation (which mentioned the Predator 2 page) and that simple searches would reveal the page, as it had an almost identical name with identical purposes. The trial judge concluded that it was apparent on the face of the posts that consideration of the lawfulness of the posts was needed. As regards the Electronic Commerce (EC Directive) Regulations 2002, which implement the ECD in the UK, the judge rejected the contention that there was an obligation to give Facebook notice in a particular form. So, neither the ECD nor the 2002 Regulations protected Facebook from the claim of misuse of private information.

A further claim under the Data Protection Act was added late in the day. The judge concluded that –in the absence of relevant discovery - CG had not established this proposition. Facebook appealed. CG also appealed as regards the data protection point, but did not pursue this point.

Court of Appeal Judgment

The Court noted that there was agreement that McCloskey’s behaviour was unreasonable conduct sufficient to give rise to criminal liability (R v Curtis [2010] EWCA 123), and that the 2002 Regulations do not cover injunctions. The Court agreed that this was an appropriate case in which to make an order taking to down the material to protect CG from continued intimidation [para 40]. The Court noted that the tort of misuse of private information and harassment, while complementary, are not the same and that a finding of harassment did not automatically mean that there had been a misuse of private information.

As regards the tort, the Court noted that there was no dispute between the parties that this case was about an intrusion, but that the tort would come into play only if there was a reasonable expectation of privacy in the information, which is a fact sensitive determination.  The Court of Appeal noted the public interest in knowing about criminal convictions; it also disagreed with the trial court judge about the reading across of the categories of sensitive information in the DPA. It held:

The fact that the information is regulated for that purpose does not necessarily make it private’ [para 45].

Reviewing the material, the Court held that the context of harassment was determinative to the finding that CG has a reasonable expectation of privacy in the material [para 49]. By contrast, RS was protected by principles of open justice which allow citizens ‘to communicate the decisions of the criminal justice systems to others’ and therefore CG did not have a reasonable expectation of privacy in relation to that posting [para 51].

The Court then considered whether Facebook could rely on the safe harbour provisions of the ECD and the 2002 Regulations. It held that the 2002 Regulations need to be understood in the light of Art 15 ECD even though it is not formally implemented in the UK. According to the Court, Article 15 ‘clearly’ applied to Facebook [para 52]. While not expressly stated, the Court’s approach is based on the assumption that Article 14 (safe harbour provisions for those providing hosting services) and Regulation 19 of the 2002 Regulations, which implement it, also apply.

The Court then considered the issue of notice. Facebook argued that CG had not given proper notice, on the basis that CG had not used Facebook’s online submission process. The Court of Appeal agreed with the trial court’s dismissal of this argument, stating, ‘[a]ctual knowledge is sufficient however acquired’ [para 58]. Facebook challenged the approach taken at first instance, that Facebook had the resources to find the material and assess it [High Court, para 61].  It was also argued that the way the High Court approached the question of constructive knowledge also implied a monitoring obligation. The trial judge referred to the XY litigation; that litigation plus the letters of CG’s solicitors; and the litigation together with some elementary investigation of the profile. The Court of Appeal agreed with these concerns.  It stated the question as being:

Whether Facebook had actual knowledge of the misuse of private information … or knowledge of facts and circumstances which made it apparent that the publication of the information was private

before commenting that

[t]he task would, of course, have been different if there had been a viable claim in harassment made against Facebook [para 62].

It did not elaborate the basis or extent of the difference.

The Court concluded that the XY litigation did not fix Facebook with sufficient notice; that it only could do so if Facebook was subject to a monitoring obligation. In any event, knowledge of a propensity to harass did not fix Facebook with notice about the private information. As regards the correspondence, the Court held that this too was insufficient to fix Facebook with notice. While it referred to the problematic content, it did not refer to misuse of privacy. ‘The correspondence did not, therefore, provide actual notice of the basis of claim which is now advanced’ [para 64]. The Court also considered that there was nothing in the letters to indicate that the information was private. So, while ‘the omission of the correct form of legal characterisation of the claim ought not to be determinative of the knowledge and facts and circumstances which fix social networking sites such as Facebook with liability’, it is necessary to identify ‘a substantive complaint in respect of which the relevant unlawful activity is apparent’. 

Here, since there was no indication in the letter of claim that the address was the issue, the Court did not ‘consider that the correspondence raised any question of privacy in respect of the material published’. [para 69] By contrast, in the letter of 26th November, CG referred to the general identification of where CG was living and the threat from paramilitaries. This was sufficient to establish knowledge of facts and circumstances in relation to that particular post. Referring to the Court of Justice in L’Oreal, the Court noted that Facebook is obliged to act as a diligent economic operator. This point was not argued; Facebook was found to be liable in respect of that post for the period 26th November-4/5 December.

The burden of proof is in the first instance on the claimant to show knowledge; thereafter the ISS must prove it did not.

As regards the DPA, it was agreed that Predators contained personal data and sensitive personal data, the issue was whether Facebook Ireland could be seen as subject to the UK DPA.  The ECJ rulings in Google Spain (Case C-131/12) and Weltimmo (Case C-230/14) were argued before the Court. The Court did not accept the submission that Google Spain was limited to its particular facts and the concern that the protection offered by the Data Protection Directive would be undermined if it excluded out of EU data controllers. The Court here noted that Weltimmo in fact built on the approach in GoogleSpain. It concluded that Facebook is a data controller established in the UK for the purposes of the DPA.  Although the Court accepted that the ECD does not cover data protection, and this is reflected in Regulation 3 of the 2002 Regulations, the Court held at para 95:

The starting point has to be the matter covered by the e-Commerce Directive which is the exemption for information society services from the liability to pay damages in certain circumstances …We do not consider that this is a question relating to information society services covered by the earlier Data Protection Directive and accordingly do not accept that the scope of the exemption from damages is affected by those Directives.’

Comment

This case is one of a number coming through the Northern Irish court system regarding different types of problematic content and the responsibility of social media platforms to take action against such content.  Shortly before this case was handed down, the High Court handed down its decision in J20 v Facebook Ireland Ltd ([2016] NIQB 98). Other cases are working their way through the system: AY v Facebook (Ireland) Ltd ([2016] NIQB 76), concerning naked images of a school girl on a ‘shame page’; MM v BC, RS and Facebook ([2016] NIQB 60), concerning revenge porn; and Galloway v Frazer and Google t/a YouTube ([2016] NIQB 7) concerning defamatory and harassing videos.  While this case is based in the particular cultural and legal context of Northern Ireland, and raises questions on the meaning of private information, it also leads of questions about the interpretation of EU laws, notably the ECD and DPD.

The first point to note is that the Court does not directly address the question of the applicability of Articles 14 and 15 ECD, beyond stating the Article 15 clearly applies. Article 15 is dependent on the ISS provider providing services that fall within one of Article 12, 13 or 14 ECD, with Article 14 being relevant here. So the question is whether Article 14 ECD (and consequently Regulation 19 of the 2002 Regulations) applies here. While the text of Article 14 ECD refers to ‘the storage of information provided by a recipient of the service’, the case law makes it clear that not any storage will do. Rather, the service provider must be neutral as regards the content, technical and passive.  In this regard, services Facebook provide regarding information of interest to Facebook users (News Feed algorithm and content recommendation algorithm, as well as Ad Match services), may mean that the question of neutrality and passivity here is at least worthy of investigation, in that Facebook may promote certain content (in the term of L’Oreal, para 114). Of course in Netlog (Case C-360/10), the Court of Justice held that a social media platform could benefit from Article 14, but this does not mean that all will – much will depend on the facts (see eg Commission 2012 Working Paper on trust in the digital single market (SEC(2011) 1641 final, accompanying COM(2011) 942 final).

Assuming Article 14 (and its UK equivalent, Regulation 19) applies, the next question is whether Facebook was on notice.  The ECD is silent on the nature of any formalities, leaving it to Member States and industry (via self-regulation per Recital 40) to fill in the detail.  In its 2012 Working Paper, the Commission acknowledged that there were diverging views as to what notice required, ranging from those who argued that nothing less than a court order should be accepted (seemingly thereby focussing on just actual knowledge) through to those who suggested that general awareness of the use of the site for illegal content was sufficient (which covers constructive knowledge) (p. 33-34). It seems there are three main issues here:

- Whether notice has to be given in any particular format;

- Whether notice has to identify the illegality or whether identifying the problematic content will do; and

- The relationship between constructive notice and Article 15, also bearing in mind the obligations of the diligent economic operator.

Facebook argued of course that a person complaining about content should use the tools provided by Facebook and provide rather precise information.  The Court, rightly, held that to require a particular format to be used but run counter to the aim (particularly with reference to the 2002 Regulations) of facilitating the ability of users to make complaints. It is less clear the position of the Court with regard to the need to provide URLs. The need to provide specific URLs makes it difficult for claimants especially those who seek orders for content to be taken down and to stay down (seen particularly in the field of intellectual property enforcement, for example even in L’Oreal). In this case, where the Court found Facebook liable CG had provided specific URLs, but the Court is silent on whether the lack of specific URLs was a determinative factor in the other instances.  It is submitted that, provided sufficient identifying information about the content is provided, precise URLs should not be required especially for a diligent economic operator (discussed below).

The Court focussed on the question of whether CG sufficiently identified the reason why the content is illegal. In this, the Court observes that the omission of the correct legal characterisation is not determinative; to have held to the contrary would undermine the ability of claimants without lawyers to have material taken down. The Court moves on to suggest that the relevant unlawful activity has to be apparent. It does not consider to whom such unlawfulness must be apparent, or indeed the prior question of whether the ECD requires just notification of content or activity perceived as illegal by the complainant, rather than a justification of why the complainant thinks that. While on the facts of this case there are concerns that CG referred to causes of action that were clearly wrong (e.g, defamation), it is arguable that the Court’s position needs further refinement. Certainly the Court’s approach on this aspect seems generous to Facebook in terms of what it needs to be told.

In this regard a number of comments can be made.  While, an operator would need to make an assessment about the legitimacy of a take down request, that is a separate issue from the fact of being notified that someone thinks some content is problematic. Further, there may a world of difference between what a man on the street might so recognise and that which the diligent economic operator should recognise and the detail required for that. Indeed, in L’Oreal, the ECJ held:

although  such  a  notification  admittedly  cannot  automatically  preclude  the  exemption  from  liability  provided  for  in  Article  14  of  Directive  2000/31,  given  that  notifications  of  allegedly  illegal  activities  or  information  may  turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification  represents,  as  a  general  rule,  a  factor  of  which  the  national  court  must  take  account  when  determining,  in  the  light  of  the  information  so  transmitted  to  the  operator,  whether  the  latter  was  actually  aware  of  facts  or  circumstances  on  the  basis  of  which  a  diligent economic operator should have identified the illegality (para 121-2).

This suggests that a diligent economic operator may not just rely on what a complainant said, but may have to take steps to fill in the blanks.  As the Commission reported in 2012, it has been suggested by some that the degree to which it is obvious that the activity or information is illegal should play a role in this assessment.  Some content is more obviously problematic than others. This position is not incompatible with the approach of the Court here: the problem for CG is that an address is not usually that problematic in privacy terms, it was the context (not apparent on the face of it) that made it so [para 69].  This distinction may have relevance for the AY litigation, if not the revenge porn case – depending on the nature of the images.

The final point of concern relates to general monitoring. The rejection by the Court of the possibility becoming aware of a particular type of content (as from the XY litigation) and being on notice as a consequence deserves further examination. This depends on what is meant by ‘general monitoring’ as opposed to a ‘specific’ monitoring obligation, accepted by recital 47 ECD, and recognised by the Commission in its 2012 Working Paper (p. 26).  It is unfortunate that the Court did not give this more attention. While case law has made clear that filtering of all content, for example, constitutes general monitoring (SABAM v Scarlet (Case C-70/10)), it has been argued- principally in the context of IP enforcement -that searching for a particular instance of content (re-occurring) is not.  Such a broad view of general monitoring as the Court here adopted also seems to decrease the space in which the diligent economic operator acts, raising questions about the meaning of L’Oreal.  Note also that the Commission in its recent review noted ‘there are important areas such as incitement to terrorism, child sexual abuse and hate speech on which all types of online platforms must be encouraged to take more effective voluntary action to curtail exposure to illegal or harmful content’ (COM/2016/0288 final).  This suggests that the Commission may expect such platforms to be proactive and not merely reactive. 

Perhaps the most significant point, and one on which a reference should perhaps have been made, is the relationship between the ECD and DPD, a point yet not dealt with in English law (see Mosley v Google [2015] EWHC 59 (QB)).  The Court accepted fairly readily that Facebook (Ireland) falls under the UK DPA, but then insists that despite the fact that data protection is excluded from the field of application of the ECD, that Facebook pages and comments fell within the “matter covered by the e-Commerce Directive” which provide a “tailored solution for the liability of [ISS providers] in the particular circumstances” set out in the ECD. It did not explain why, beyond asserting that the ECD safe harbour provisions do ‘not interfere with any of the principles in relation to the processing of personal data, the protection individuals ... or the free movement of data’ [para 95]. In this assessment, the Court overlooked the fact that under the DPD a remedy must be provided to individuals, so as to make effective their rights and, that the protection awarded to data subjects should not vary depending on the mechanism used for that processing.  Furthermore, Recital 14 to the ECD elaborates that

The protection of individuals with regard to the processing of personal data is solely governed by Directive 95/46/EC …..the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data.

Whilst a Member State was free to provide more far-reaching to protection to intermediaries, this freedom reaches its limit when it conflicts with another harmonised area of EU law, such as data protection. The Court’s position on this point, and especially its reasoning, in the light of the terms of both directives, is not convincing.

In sum, the outcome – liability for Facebook on one aspect of the content posted – sounds on the face of it a narrowing of immunity.  The reality points in a different direction. While there are a number of problematic issues with which the court had to deal, the impact of this judgment lies in the statements of general principle which the Court made. Significantly, these fell into areas ultimately governed by EU law, rather than purely domestic matters.  It is far from certain that those issues are clearly determined at EU level, nor that the Court’s assessment here is free from doubt.

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Freedom of expression and liability for Internet comments: a key new ECHR judgment

Lorna Woods, Professor of Internet Law, University of Essex

Should the providers of internet sites be liable for the comments which people make on them? The European Court of Human Rights had addressed this issue in important recent judgment: MTE v. Hungary.

Given the importance of intermediaries to the development of the internet, there are policy grounds for suggesting that intermediaries should not be treated in a manner analogous to a (knowing) publisher in the off-line environment, but should instead be provided with some level of immunity from suit in respect of the views of others.  Last year in Delfi (which I discussed here) the Grand Chamber of the European Court of Human Rights ruled that the holding of a newspaper portal liable for the comments of end users was not a violation of the freedom of expression, as guaranteed by Article 10 ECHR. That decision was much criticised.

The issue of the liability of an on-line newspaper for the comments of its readers has now come before the Court again. In this case, however, the Court’s chamber, while referring at a number of points in its judgment to the reasoning of the Delfi Grand Chamber, came to a different conclusion from that in Delfi. In so doing, has the Court departed as a matter of legal principle from its previous approach, or are the facts sufficiently different from Delfi so as to justify a different outcome on that basis?  Given this difference, MTE although not the first case on intermediary liability, is important in showing the development of the Court’s thinking in respect of the internet.

Facts

There are two applicants: a company which runs a news portal; and a non-profit organization, which is the self-regulatory body of the internet content providers in Hungary. Each carried a story on their respective web sites about the behaviour of an on-line estate agency, claiming it did not adhere to high consumer protection standards.  In response to the story, there were a number of comments from end users. The owner of the estate agency sites brought a civil action against the two applicants in respect of the original opinion and some of the comments in response to it. At this point the applicants removed the challenged content. The applicants argued that they were not responsible for third party comments. The highest national court disagreed even though, during the litigation process, various national courts adopted different approaches to reasoning and even outcome in this case.

Judgment

The European Court of Human Rights noted that there was no dispute that there had been an interference with the applicants' freedom of expression. The main issue before the Court was the justification for that interference under Article 10(2) ECHR. The Court re-capped the general principles applicable to such an assessment: lawfulness, legitimate aim and proportionality. While the national courts gave different reasons for the application of the law imposing liability, the Court nonetheless found that, given that the applicants were engaged in their activity professionally, they were in a position to assess the risks and that therefore the law on which the interference was based was sufficiently foreseeable to be regarded as lawful as required by Article 10(2). Looking at the other elements necessary to satisfy Article 10(2), the Court also accepted that the aim was to protect interests of others, and therefore legitimate. The crucial questions related to whether the finding of liability was 'necessary in a democratic society' and proportionate.

The Court re-iterated its case law in this area, noting that the test of 'necessary' related to 'a pressing social need' and highlighting the importance of the role of the press in a democratic society as watchdog, citing Delfi at least for the first point (paras 54-55). The Court emphasised the unique nature of the Internet as a source of information before going on to summarise its previous case law on the right to reputation as protected by Article 8. In essence, the rights are of equal weight, neither one nor the other takes priority and the outcome of a given case should be the same whether it is considered under Article 8 or Article 10.

Applying these principles to the facts, the Court held that both applicants should be treated analogously to the press, as they provided a forum for public debate allowing others to express their ideas (para 61). The Court then equated the applicants to publishers but noted that the duties and responsibilities that they assumed as such differed from that of traditional publishers because of the nature of the Internet, citing Delfi and highlighting the 'clearly unlawful' nature of the speech in that case (paras 62-63 referring to Delfi, para 113). The Court noted certain differences between the two cases. First, the speech was offensive rather than clearly unlawful. Second, the regulatory body did not have a profit motive.

Considering the balancing between rights, the Court was critical of the national courts' immediate acceptance of the fact that harm had arisen from the statements without further investigation, and noted that there was a difference between the reputational harm that can be suffered by an individual and that which is suffered by a company. Despite this concern, the Court went on to apply the principles laid down in case such as von Hannover II, Axel Springer and Hachette Filipacchi as to factors to be taken into account in balancing between Article 8 ECHR (the right to privacy) and Article 10. The Court then returned to Delfi to add that, given the intermediary role of the company, additional factors were relevant:

The context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors as an alternative to the intermediaries' liability and the consequences of the domestic proceedings for the applicant company (para 69 citing 142-3 of the Delfi judgment).

While Delfi had involved hate speech, the court noted here that the same criteria would be relevant for assessing proportionality even when hate speech was not in issue.

The Court determined that the comments, relating to the malpractice of two large estate agents, were in the public interest. Moreover the comments were not gratuitous. The Court distinguished between the position of the news portal and that of the self-regulatory body, the latter being a forum for professional discussion rather than having a wide public audience. It also noted that the national courts paid no attention to the role that the applicants had played in generating the comments.  In the Court's view the national courts had paid inadequate attention to the role of the authors and the impact of their rulings on the applicants. It suggested that, while the domestic courts had found that in allowing unfiltered comments the applicants might have foreseen some difficulties with the content of the comments, this amounted to 'requiring excessive and impractical forethought capable of undermining the freedom to impart information on the Internet'.

Comment

The Court did not address the nature of the free speech rights which were the subject of the interference.  It did not have to because both sides accepted the point, though presumably the Court itself accepted the point.  There is an underlying question of whether those who are not speaking but providing a forum of facilitating the speech of others have expressive rights.  They clearly form part of the scope of freedom of expression when seen from the perspective of the speaker – in the same way publishers, museum and gallery curators do – but do they have free-standing rights?  This point has arisen before, for example in the Pirate Bay case, without much clarity being found as to why and to what extent any such right exists (see my analysis here). Pirate Bay was an admissibility decision, which may explain its brevity. 

Here at least we have some clarification of the point, albeit implicit. When applying the principles derived from its case law to the instant case, the Court ‘consider[ed] the nature of the applicants’ rights of expression in view of their role in the process of communication …’ and remarked that the applicants ‘provided forum for the exercise of expression rights, enabling the public to impart information and ideas’ [paras 60- 61].  The Court then equated the position of the applicants to that of the press [para 61]. 

While this gives us some starting point for assessing expression rights, this is still not clearly delineated.  What sort of forum needs to be provided for Article 10 to apply?  Remember, telecommunications and letters are protected by Article 8, indicating that at some point between internet social media platforms and internet access provisions there is a shift in protective mode, and one that shifts the focus of attention from the body providing the forum or mechanisms of communication to the primary speaker.  The linking of the forum to the role of the press seems to suggest that a key factor is the curating (rather than just moderating) function of the media in bringing stories to public attention for discussion.  The Court seems to be envisaging user comments almost in the vein of interviews on television, or letters to the editor:

the applicant’s liability is difficult to reconcile with the existing case-law according to which ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’ [para 79, citing Jersild, para 35].

Despite this, the Court’s concern also seems to be about the end-users ability to speak. The attitude is reflected in the Court’s later comment, that the imposition of liability on the applicants

‘may have foreseeable negative consequences on the comment environment of an Internet portal, for example by impelling it to close the commenting space altogether. For the Court, these consequences may have, directly or indirectly, a chilling effect on the freedom of expression of the Internet’ [para 86].

In this, we see reflections of the audience’s interests in much of the case law on journalism, which does not seem to go so far as to give audiences a right that is enforceable (see Akdeniz and contrast Cengiz.  As an aside, we might question whether the case of one news-based forum will affect the entire Internet, or whether the same reasons for protecting the forum which apply when topics of public interest are discussed apply also in the context of mundane and private matters. 

Re-focussing this question, we could ask the extent to which this reasoning protects all intermediaries, or whether the protection is limited to those which have a close connection with content.  This is particularly significant given that the Court has said that the principles applying to the press apply to MTE. Generally, the media attract a high level of protection, although in Delfi the Court focused on the duties and responsibilities of publishers rather than their rights, although it did recognize that the duties and responsibilities might differ from those of a traditional publisher {Delfi, para 113}. It also sought to limit its judgment narrowly rather than establishing principles for all fora [Delfi, para 116].

Accepting that a news portal in principle falls within Article 10, how did the Court distinguish Delfi? The answer seems to be in the weighting ascribed through the assessment of whether the restriction was ‘necessary in a democratic society’.  As in Delfi, the Court emphasizes that its role is not to re-make the decisions of the national courts but to assess whether the national courts carried out a due balancing between Article 8 and 10 (and it seemed unimpressed with the approach of the Hungarian courts – see para 88).  In this section of the judgment, we see multiple references to Delfi, as well as to the more general case law on Articles 8 and 10 in Axel Springer, von Hannover II etc. It is however questionable whether the Court refrained from second guessing the national courts in order to find a basis for the factual difference from Delfi. According to the Court, in Delfi the language used was clearly illegal, virtually hate speech, whereas here the speech was merely ‘offensive and vulgar’ (para 64).  While the Grand Chamber itself categorized the speech in Delfi as hate speech, the question is how clear the boundary is between that and the ‘offensive and vulgar’ in MTE. In Delfi, there is a single reference to a ‘sick Jew’, seemingly as a term of opprobrium, among many references to the person who is the subject of the story acting like a pig.  In MTE, one comment is translated as ‘people like this should go and s**t a hedgehog and spend all their money on their mothers’ tombs until they drop dead’ [at para 14].

Moreover there are instances where the Court confirms the approach in Delfi, and then justifies a different or narrower approach.  For example, at para 77, the Court first re-stated the approach in Delfi concerning the effects of defamation (referring to para 147 of that judgment) but then holds that the style of Internet communication reduces offence.

Finding that Hungarian courts had not sufficiently weighted freedom of expression and Article 8, the Court considered the notice and take-down regime. It re-stated the approach in Delfi and suggested that ‘if accompanied by effective procedures allowing for rapid response, the notice-and-take-down-system could function in many cases as an appropriate tool for balancing the rights and interests of all those involved’ [para 91, tracking the wording of Delfi, para 159]. The difficulty is that in endorsing the approach of the Grand Chamber, the Court has also endorsed the position that clearly unlawful speech (specifically hate speech) requires immediate action.  It is difficult to envisage a system that allows such immediate action that also does not also involve monitoring of all content. Yet, at para 82 of its judgment the Chamber criticizes the requirement for filters as ‘this amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impact information on the Internet’.

One final point concerns the commercial motivation of the parties.  The Court had distinguished between the two applicants, but did not draw through the consequences of this distinction. The commercial motivation in Delfi had been a factor in the ultimate finding of no infringement.  This is somewhat worrying, as many intermediary services are provided, directly or indirectly, for profit. In the Concurring Opinion of Judge Kuris we find the following statement [para 3]:

… this judgment should in no way be employed by Internet providers, in particular those who benefit financially from the dissemination of comments, whatever their contents, to shield themselves from their own liability … for failing to take appropriate measures against these envenoming statements.  If it is nevertheless used for that purpose, this judgment could become and instrument for (again!) whitewashing the Internet business model, aimed at profit at any cost. [emphasis in original]

So while MTE tempers the approach in Delfi, it is not a ringing endorsement of intermediary safe harbor either.  Clearly the Court has not yet developed a coherent theory about the approach to take to intermediaries and there are clearly issues about the style of speech on the Internet and the balance of protection there. As Kuris noted, MTE is the first judgment post-Delfi but it will not be the last.

Photo credit: universitypost.dk

Delfi v Estonia: Curtailing online freedom of expression?

Lorna Woods, Professor of Media Law, University of Essex

When can freedom of expression online be curtailed? The recent judgment of the Grand Chamber of the European Court of Human Rights in Delfi v. Estonia has addressed this issue, in the particular context of comments made upon a news article. This ruling raises interesting questions of both human rights and EU law, and I will examine both in turn.

The Facts

Delfi is one of the largest news portals in Estonia. Readers may comment on the news story, although Delfi has a policy to limit unlawful content, and operates a filter as well as a notice and take down system. Delfi ran a story concerning ice bridges, accepted as well-balanced, which generated an above average number of responses. Some of these contained offensive material, including threats directed against an individual known as L. Some weeks later L requested that some 20 comments be deleted and damages be paid. Delfi removed the offending comments the same day, but refused to pay damages. The matter then went to court and eventually L was awarded damages, though of a substantially smaller amount than L originally claimed. Delfi’s claim to be a neutral intermediary and therefore immune from liability under the EU’s e-Commerce Directive regime was rejected. The news organisation brought the matter to the European Court of Human Rights and lost the case in a unanimous chamber decision. It then brought the matter before the Grand Chamber.

The Grand Chamber Decision

The Grand Chamber in essence, affirmed the outcome and the reasoning of the chamber judgment in the same case, albeit not unanimously. It commenced by re-capping the principles of Article 10 of the European Convention on Human Rights from its previous case law. These are familiar statements of law, but it seems that from the beginning of its reasoning the Grand Chamber had concerns about the nature of content available on the internet. It commented:

while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that liability for defamatory or other types of unlawful speech must, in principle, be retained and constitute an effective remedy for violations of personality rights. [110]

The Grand Chamber then referred to certain Council of Europe Recommendations, suggesting:

a “differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe” (see § 7 of the Appendix to Recommendation CM/Rec(2011)7, ..). Therefore, the Court considers that because of the particular nature of the Internet, the “duties and responsibilities” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content. [113]

The Grand Chamber applied the principles of freedom of expression to the facts using the familiar framework. First there must be an interference with the right under Article 10(1) of the Convention, then any restriction should be assessed for acceptability according to a three stage test. The test requires that the restriction be lawful, achieve a legitimate aim and be necessary in a democratic society. The existence of a restriction to freedom of expression was not disputed, and nor that the Estonian rules pertained to a legitimate aim. Two areas of dispute arose: lawfulness and necessary in a democratic society.

Lawfulness

Lawfulness means that the rule is accessible to the person concerned and foreseeable as to its effects. Delfi argued that it could not have anticipated that the Estonian Law of Obligations could apply to it, as it had assumed that it would benefit from intermediary liability derived from the e-Commerce Directive. The national authorities had not accepted this classification, so essentially Delfi argued that this was a misapplication of national law. The Grand Chamber re-iterated (as had the chamber) that it is not its task to take the place of the domestic courts but instead to assess whether the methods adopted and the effects they entail are in conformity with the Convention. On the facts, and although some other signatory states took a more “differentiated and graduated approach” as suggested by the Council of Europe recommendation, the Grand Chamber was satisfied that it was foreseeable that the normal rules for publishers would apply. Significantly, the Grand Chamber commented, in an approach similar to that of the First Chamber that:

as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. [129]

Necessary in a Democratic Society

The Grand Chamber started its analysis by re-iterating established jurisprudence to the effect that, given the importance of freedom of expression in society, necessity must be well proven through the existence of a ‘pressing social need’. It must determine whether the action was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. The Grand Chamber also emphasised the role of the media, but also recognised that different standards may be applied to different media. Again it re-iterated its view that the Internet could be harmful, as well as beneficial ([133]). The Grand Chamber then travelled familiar terrain, stating the need to balance Articles 8 and 10 and approving the factors that the First Chamber took into account: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company’s liability, and the consequences of the domestic proceedings for the applicant company ([142-3]).

Here, the Grand Chamber emphasised the content of the comments: that they could be seen as hate speech and were on their face unlawful [153] and that given the range of opportunities available to anyone to speak on the internet obliging a large news portal to take effective measures to limit the dissemination of hate speech and speech inciting violence was not ‘private censorship’. ([157]) The idea that a news portal is under an obligation to be aware of its content is a key element in the assessment of proportionality. Against this background (rather than one which accepts the notice and take down regime as enough), Delfi’s response had not been prompt. Further, ‘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’ [158]. In the end, the sum that Delfi was fined was not large, and the consequence of the action against the news portal was not that Delfi had to change its business model. In sum, the interference could be justified.

There were two concurring judgments, and one dissent. Worryingly, one of the concurring judges (Zupančič), having criticised the possibility of allowing anonymous comments, argued:

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.

According to the old tradition of the protection of personality rights, …, the amount of approximately EUR 300 awarded in compensation in the present case is clearly inadequate as far as damages for the injury to the aggrieved persons are concerned.

Human Rights Issues: Initial Reaction

This is a long judgment which will no doubt provoke much analysis. Immediate concerns relate to the Court’s concern about the Internet as a vehicle for dangerous and defamatory material, which seems to colour its approach to the Article 10(2) analysis and, specifically, to the balancing of Articles 10 and 8. In recognising that the various forms of media operate in different contexts and with different impact, the Grand Chamber has not recognised the importance of the role of intermediaries of all types (and not just technical intermediaries) in providing a platform for and curating information. While accepting that the internet may give rise to different ‘duties and responsibilities’, it seems that the standard of care required is high.

Indeed, the view of the portal as having control over user generated content seems to overlook the difficulties of information management. The concurring opinions go to great length to say that a view which requires the portal only to take down manifestly illegal content of its own initiative is different from a system that requires pre-publication review of user generated content. This may be so, but both effectively require monitoring (or an uncanny ability to predict when hate speech will be posted). Indeed, the dissenting judges say that there is little difference here between this requirement and blanket prior restraint (para 35). Both approaches implicitly reject notice and take down systems, which are used – possibly as a result of the e-Commerce Directive framework – by many sites in Europe. This focus on the content has led to reasoning which almost reverses the approach to freedom of expression: speech must be justified to evade liability. In this it seems to give little regard neither to its own case law about political speech, nor its repeated emphasis on the importance of the media in society.

EU law elements: consistency with the e-commerce Directive?

The Delfi judgment raises some practical questions for news sites hosting third party content, especially reader comments.  An underlying concern is how this judgment fits with the EU policy approach towards the Internet and intermediaries in particular.  The eCommerce Directive provides, inter alia, for the limitation of liability for intermediaries, in articles 12-15.  These provisions were considered important, not just for the free flow of services through the EU, but support to the development of the Internet and service offered on it.  The eCommerce Directive envisages three categories of intermediary – those which are mere conduits, those which offer caching and those which host content.  The essential quality of these intermediaries is that they were facilitators via technical services rather than contributing to the provision of specific content.  It is the scope of this last category that is uncertain, especially given the development of a range of services which challenge the understanding of the Internet as it stood at the time of the enactment of the directive.  Following the first chamber decision, there was some concern that the judgment did not respect the underlying policy choice about intermediaries, nor reflect the significance of the role of intermediaries for the functioning of the Internet, especially from the perspective of end-users.  The question is how out of line, if at all, is the judgment with the Directive?

The first thing to note before we look at the substance is that the Strasbourg Court was not making the decision about whether Delfi was a neutral or passive intermediary or not.  The Court was rather reviewing the impact of the Estonian court’s reasoning.  In sum, it is far from clear that the court was unreasonable – bearing in mind the current jurisprudence from the European Court of justice – in accepting the Estonian court’s end conclusion (even if we might be critical about some points of its reasoning).

The intermediary liability provisions provide a graduated scale of protection, with the greatest protection going to services that are the most technical.  For hosting services, protection is dependent on lack of knowledge of the offending content.  There have been questions about the interpretation of some of the phrases in Article 14(2) of the Directive, such as ‘awareness’, ‘actual knowledge’ and obligation to act expeditiously’. The Directive envisages notice and take down regimes as a way to deal with offending content. Articles 14 and 15 do not affect Member States’ freedom to require hosting service providers to apply those duties of care that can reasonably be expected from them and which are specified by national law in order to detect and prevent certain types of illegal activities. (recital 48) Article 15 prevents Member States from imposing on internet intermediaries, with respect to activities covered by Articles 12 to 14, a general obligation to monitor the information they transmit or store or a general obligation to actively seek out facts and circumstances indicating illegal activities.  Article 15 does not prevent public authorities in the Member States from imposing a monitoring obligation in a specific, clearly defined individual case (recital 47). It is implicit in the foregoing, that Article 15 only applies to intermediaries which can claim the benefit of one of Articles 12, 13 or 14.

A number of cases have been brought before the European Court of Justice to understand better the scope of Article 14, and the extent of the protection in Article 15. For example, SABAM v Netlog (Case C-360/10) concerned a social networking site which received a request from SABAM, the Belgian copyright society, to implement a general filtering system to prevent the unlawful use of musical and audio-visual work by the users of its site.  In addition to confirming the prohibition in Article 15 on monitoring, the ECJ noted that a filter might not be able to distinguish between lawful and illegal content, thus affecting users’ freedom of expression (access to information).  In this the ECJ seems to be reflecting the position the ECtHR took in Yildirim, regarding ‘collateral censorship’.  There is a limitation on carrying the ideas in Netlog across to Delfi in that the rules in Article 15 apply to neutral intermediaries and it is unclear whether the ECJ would find a news site to be neutral in this sense, whether because of the agenda-setting function which ‘invites’ particular responses, or because of the adoption of filtering and moderation systems.

In the Google Adwords case (Joined Cases C-236/08, C-237/08 and C-238/08, judgment 23^rd March 2010), the ECJ held that the test for whether a service provider could benefit from Article 14 ECD was whether it was ‘"neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores"’ (para 114).  One could argue that, insofar as a site invites comment on a particular topic, it is not neutral though one might question how overt that invitation might be. In L’Oreal (Case C-324/09, judgment 12 July 2011), the Court held that the Article 14 exemption should not apply where the host plays an "active role" in the presentation and promotion of offers for sale posted by its users so as to give it knowledge of, or control over, related data.  Further, if a host has knowledge of facts that would alert a "diligent economic operator" to illegal activity, it must remove the offending data to benefit from the Article 14 exemption.  We might question what the role of moderation and filters are in this context specifically in terms of giving an intermediary control over content.  As regards the Delfi case itself, there are arguably parallels between the ECJ and ECtHR approaches in that both courts seem to think that those acting in the course of their business are in a better place to assess where and when problems might arise.  A point of difference relates to the views of commercial activities. The ECJ argued in Google Adwords:  

It must be pointed out that the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability provided for in Directive 2000/31. [116]

The reference to ‘general information’ also suggests that contributors’ policies would not be determinative either.

Applying the tests found in L’Oreal v. eBay and Google Adwords in Papasavvas v O Fileleftheros, a case concerning on-line defamation in relation to a news story posted by a newspaper on its site (which I discussed earlier here), the ECJ ruled:

Consequently, since a newspaper publishing company which posts an online version of a newspaper on its website has, in principle, knowledge about the information which it posts and exercises control over that information, it cannot be considered to be an ‘intermediary service provider’ within the meaning of Articles 12 to 14 of Directive 2000/31, whether or not access to that website is free of charge. [45]

There are some similarities to the Strasbourg court’s reasoning, in that both courts point to the idea about control over information.  There are differences, however, in that the control over the defamatory material in Papasavvas was much more direct than in Delfi, and the predictive abilities of newspapers about their audience’s response to stories not in issue.  Nonetheless, it is far from clear that the ECJ would reject the agenda-setting argument the Strasbourg court used, especially given its reasoning in L’Oreal regarding the ‘promotion’ of particular content and the requirements of a diligent economic operator.

The Strasbourg court’s reasoning put Delfi in a position of effectively having to monitor user content.  Had Delfi been found to be an intermediary in the sense of Articles 12-14, this would have been contrary to Article 15 of the eCommerce Directive, as implemented in domestic law.  Given that Delfi was found not to be such an intermediary, then Article 15 does not come into play. It also seems that this finding is not unlikely under EU law.  There is then no automatic conflict between this ruling and the position under EU law.  Whether this outcome is desirable from an Internet policy perspective is another matter.  This case and its consequences may then feed into the review of intermediaries that the EU Commission is planning as part of its Digital Single Market strategy.

*Part of this post was previously published on the LSE Media Policy Project blog

Barnard & Peers: chapter 9

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