Website Owners – Saying "We don’t moderate so don’t moan at us" – may no longer be enough

A recent European ruling in Estonia may cause website owners to sleep slightly less easy at night as the European Court of Human Rights has issued a ruling that indicates website owners may need to actively review and moderate their websites in order

The case centered around comments made by users on a Estonian news network article. It is a general practice adopted by many website owners and publishers to post articles and invite user comments on said articles: this is an easy way to drive traffic to the site and invite user interaction. Website owners generally avoid being liable for any of these comments that may be defamatory a) because they are purely user generated without any editorial input from the website owner/publisher and b) prompt removal from the website, following any complaints that may be made, often provides the website with a defence to any libel proceedings. So, prior to this recent decision, websites were pretty stress free when it came to complaints about user generated comments on their site and any threats of libel proceedings.

The Estonian case concerned a ferry company who had changed its routes and damaged local infrastructure as part of the change. The story was posted on a mainstream Estonian news network and attracted offensive and defamatory comments from online users. The ferry company complained directly to the website and did not make use of the website flagging system. The news network accepted the comments were defamatory (A BIG MISTAKE!) but 6 weeks had passed before the comments were actually removed, hence the libel proceedings bought by the ferry company.  After the Court found that the website owner was responsible for the website comments on the article, the website owner could not then seek to bring defenses against the libel proceedings as they had already admitted they were defamatory, a critical error.

Generally website owners never make any admission of liability or comment on the veracity or lawful basis of comments even after removing them, as this gives the website a further fall back point should a claimant seek to issue libel proceedings against them.

The news website in this case did not have such a fall back plan. 

The judgment in this case, contained a paragraph that will keep website owners on edge, as the Court appears to have placed a positive obligation on websites to monitor carefully controversial stories which could invite comments which may be unlawful on a “higher than average basis”, which in layman’s terms means that any high profile story will need to be closely policed and monitored in case defamatory comments are made by the websites users. A website can only ensure it steers clear of libel proceedings by keeping their eyes sharp on such comments and removing them expeditiously, potentially even before receiving a complaint from an effected party.

This judgment may well see the extinction of the previous standard response from website owners of “we cannot be held liable because we don’t moderate”. This response generally prevented them being named as the subject of libel proceedings.  But now, the tide is turning and so website owners should be very, very wary of user comments.

John Spyrou