Monthly Archives: June 2015

Lorna Woods on Delfi AS v. Estonia – Internet news portal liable for user comments

An Estonian internet news portal is liable for user comments published on its site in 2006, the Grand Chamber of the European Court of Human Rights has affirmed. In this post, Professor Lorna Woods explains the key aspects of Delfi AS v. Estonia  and offers her initial reaction to the decision, which found no violation of Article 10 of the Convention. This post first appeared on the LSE Media Policy Project blog.

The Grand Chamber in Delfi v. Estonia (64569/09) has, in essence, affirmed the outcome and the reasoning of the chamber judgment in the same case, albeit not unanimously.

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 e-Commerce 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 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.

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.

Professor Lorna Woods is Deputy Director of Research and Director of the LLM in Internet Law at the University of Essex.

  • Read Lorna Woods’ note on the First Chamber decision here [PDF]: ‘In this case, it seems that the intermediary was in the position of having to justify doing nothing, rather than the State justifying the interference with freedom of expression’.

Judith Bannister: The last word on the public interest in FOI – Australia and the UK compared

Dr Judith Bannister is a Senior Lecturer at the Adelaide Law School, University of Adelaide, and is currently a Visiting Fellow at the Institute of Advanced Legal Studies, undertaking a comparative study of FOI. On 17th June 2015 she will give an evening lecture at the IALS on ‘Thinking spaces; the exclusion of deliberative matter from FOI disclosure’ – please follow this link to book your place (free to register, starts at 6pm)

judith-bannisterFreedom of information (FOI) reform has often been slow in Australia. There was a decade (and a change of government) between Gough Whitlam’s 1972 election promise of freedom of information and the passing of the Commonwealth’s Freedom of Information Act in 1982. There were 15 years between the recommendation of the Australian Law Reform Commission and Administrative Review Council to create an FOI Commissioner and the establishment of that position in 2010. Slow progress can be appropriate if it results from a cautious and informed approach to reform with evidence-based analysis and extensive consultation. Unfortunately, FOI reform can sometimes be based upon on little more than long-held scepticism, or a panicked reaction to the outcome of a particular case.

Current FOI reforms in Australia

Before the Office of the Australian Information Commissioner (OAIC) was established in 2010 the Administrative Appeals Tribunal (AAT) undertook merits review of access refusals and there was no FOI ‘champion’ offering guidance and oversight of agency compliance. The reform currently proposed by the government will again disperse these roles – reviews to the AAT, complaints to the Ombudsman – and leave many of the broader information policy activities without a steward.

Taking a step backwards in Commonwealth FOI in this way is proving to be a slow process at the moment. The delay results not from thorough investigation, but from an impasse. It has now been over a year since the Commonwealth Government attempted to take a step backwards and abolish the OAIC. Last year the budget papers removed funding in anticipation of legislation being passed to abolish the statutory office, but the amending Bill remains stalled before the Senate. The Canberra office has closed and a skeleton staff is attempting to maintain some functions with severely reduced funding.

FOI reform proposals in the United Kingdom

In the United Kingdom there are also proposals for reform of FOI. These reforms relate to the veto power. On one view the proposals would involve no more than a step back to the original intention of the legislature. However, strengthening the veto has the potential to undermine the overarching objective of open government. Central to the veto power is a fundamental question in FOI law: who has the last word on determining whether disclosure is in the public interest? Is it an external review body such as an information commissioner or tribunal, or is it the Ministers and departments who hold the documents?

The veto power in the UK

The veto empowers senior members of the Government (including Cabinet Ministers and the Attorney General) to issue a certificate that, in effect, overrides decisions or enforcement notices issued by the UK Information Commissioner or First Tier Tribunal. Any decision by the Information Commissioner or Tribunal that the public interest requires disclosure of documents ceases to have effect.

This veto power was used, controversially, to prevent disclosure of the correspondence between the Prince of Wales and Ministers in the Blair Labour Government (the notorious ‘black spider memos’), and yet, as readers will be aware, those letters were published recently. The Guardian newspaper and journalist Rob Evans undertook a decade long battle to get access to the letters. When the letters were released the public learnt about a wide of range of views held by the Prince of Wales and, interestingly, his awareness of the freedom of information regime that did not seem to have any chilling effect on his written communications.

Disagreement over the public interest

The case provides an excellent case study in how rational minds can disagree – quite fundamentally – about whether disclosure of information is, or is not, contrary to the public interest. The Government departments and Information Commissioner originally agreed that the letters ought not to be disclosed. On appeal the Upper Tribunal allowed disclosure and the Attorney General then issued a certificate to override that decision. It was judicial review by the courts, appealed ultimately to the Supreme Court, that ensured publication. The Court invalidated the Attorney General’s veto certificate.

Before the case concerning the Prince’s letters had worked its way through the courts, the UK Parliament amended the Freedom of Information Act (FOIA) to change the exemption that protects the communications of the Monarch, heir and second in line to the throne from a qualified to an absolute exemption. The strengthening of the exemption did not operate retrospectively and the Evans case continued. Removing the public interest analysis in any exemption is a step back from open access. However, it is the proposals for reform of the veto power more generally that may have the greatest impact.

The Supreme Court, affirming the Court of Appeal, invalidated the Attorney General’s certificate because it could not be justified on ‘reasonable grounds’. The veto power in the United Kingdom legislation requires the person signing the certificate to form the opinion that the public authority’s assessment of the public interest is the correct one on ‘reasonable grounds’. Simply coming to a different conclusion on the public interest is not sufficient. The Supreme Court set a high standard for ‘reasonable grounds’ because the executive government was disagreeing with the detailed findings of a judicial tribunal.

History of conclusive certificates in Australia

‘Reasonable grounds’ is a phrase familiar to Australian freedom of information and administrative law. Conclusive certificates signed by Ministers to prevent FOI disclosure are no longer part of Commonwealth FOI law: they were abandoned in the lead up to the 2010 reforms (there remain some limited provisions for conclusive certificates in a few States and Territories). Before 2009, Commonwealth Ministers could sign certificates that established ‘conclusively’ that certain documents were exempt, and that included establishing conclusively the public interest test for a qualified exemption. The conclusive certificates that were once part of the Australian FOI scene operated very differently to the UK veto certificates. The important difference was that in Australia the Government did not disagree with any tribunal findings – the ‘trump card’ was played much earlier in the process.

Australian Ministers issued certificates after a government agency had decided that disclosure of the documents was contrary to the public interest and before any external review. With a certificate in place, the review that could be undertaken by the Administrative Appeals Tribunal was confined to determining whether ‘reasonable grounds’ existed for the claims made by the Minister. The provision prevented any merits review at the Tribunal level and it was not open to the Tribunal to balance the competing public interests and come to its own conclusion. Even if the Tribunal did find that there were no reasonable grounds for a certificate, that finding was merely a recommendation that could be disregarded by the Government so long as a notice was laid before both Houses of Parliament. In the context of Australian FOI, as it then operated, it was quite straightforward for a Minister to issue a certificate.

In some cases it might have been that, given the opportunity, the Tribunal would have agreed with the Minister that the disputed information was exempt, in other cases the Tribunal may have weighted the public interest factors differently. A Minister issuing a certificate did not need to run the risk of an appeal.

The shutting down of the public interest analysis under the Australian system at such an early stage was bitterly resented by FOI applicants and for a time conclusive certificates came to represent everything that was wrong with the Australian FOI system. This was not just because applicants disagreed with the outcome in particular cases, or believed that the Tribunal would have been more likely to release the documents, but also because the public interest analysis was not transparent. It was quite difficult to determine how many certificates were being issued and whether the reasons were sound.

The UK veto in light of the Australian experience

In comparison, it has been a far more open process in the UK. There have been relatively few cases where the UK veto has been exercised, and the transparent process may have played a part in the cautious use of the power. The veto is exercised only after a comprehensive review of the issues by the Information Commissioner or the Tribunal who publish their decisions. For the Supreme Court this was problematic because it left the executive attempting to overrule judicial decisions, at least in relation to the Tribunal. However, from the perspective of open access to information there is a lot to be said for a system that opens up discussion of the public interest to external review bodies. There is also greater openness through reporting to Parliament in the UK system. When a veto is issued a copy of the certificate must be laid before each House of Parliament, and the Information Commissioner may also exercise a general reporting power to make his own report to Parliament.

The Supreme Court’s decision in Evans has left the UK Government with a veto that is far less powerful than had been assumed. When that is combined with a statutory scheme with few absolute exemptions, and quite a good track record on some statistical indicators, there are ample opportunities to openly consider the public interest implications of FOI disclosure in the UK system.

The Government’s response to the Supreme Court’s decision in Evans has been a call to strengthen the veto. It is not yet clear how that might be achieved. It may be that attempts are made to make Parliament’s intention concerning the current veto ‘crystal clear’, but any suggestion of a veto that operates earlier in the process by ousting merits review should sound alarms. In the battle between executive government and external review bodies over who has the last word on the public interest in information disclosure the central importance of transparency ought not to be forgotten.

If veto claims are to be made by governments then it is absolutely essential that external review, published reasons and reports to Parliament shed light on those claims. The Australian experience was that if the veto is exercised early in the process then there is a danger that the important public scrutiny that emerges from external review will be lost.

This post was first published on AUSPUBLAW, the Australian Public Law Blog. AUSPUBLAW is a recently launched national platform for academics, practitioners and others from across Australia to communicate their research and provide expert commentary on topical public law issues. Visit the blog to learn more: www.auspublaw.org. It also appeared on the UK Constitutional Law Association blog here.

 

Upcoming event, 10 June 2015: Digital Humanities Panel at the SAS Open Day

Here’s the programme for the Digital Humanities Panel, part of the School of Advanced Study Humanities Open Day on 10th June, which includes a presentation by the Centre on law and information and data. The open day will showcase the School’s resources and share information about postgraduate courses, research training, libraries, archives and digital tools – aimed at undergraduates as well as postgraduate and early career researchers. We hope to see you there – and please drop by the Institute of Advanced Legal Studies’ stand at the event! Booking details here.

4 – 4:05: Welcome and Introduction to Digital Humanities Panel 

Lorna Hughes, Chair in Digital Humanities for SAS (via pre-recorded video)

4:05 – 4:15: Introduction of Panel Members and Themes

Panel chair: Matt Phillpott, Manager of SAS-Space, SAS Open Journals, and the PORT training suite

4:15 – 4:20     Information and Data: A Legal Perspective

Judith Townend, Director, Centre for Law and Information Policy, Institute of Advanced Legal Studies

4:20 – 4:25     Digitally Mapping Historical and Archaeological Evidence

Matthew Davies, Professor of Urban History, and Director of the Centre for Metropolitan History, Institute of Historical Research

4:25-4:30: Increasing Access through Digital Methods

Henry Irving, Postdoctoral Research Fellow, Ministry of Information Project, Institute of English Studies

4:30 – 4:50: Questions and Answers

Moderated by Matt Phillpott

4:50 – 5: Concluding summary

Matt Phillpott

Upcoming event, 11 June – Civil Unmanned Aerial Vehicles: Societal Implications and Issues

Dr David Goldberg, Advisory Board member of the Centre for Law and Information Policy, is co-organising an event on Civil Unmanned Aerial Vehicles at the Royal Aeronautical Society in London on 11th June 2015.

The workshop will address a selection of social/societal issues arising from the deployment of civil, commercial RPAS from a variety of perspectives – law, politics, ethics and  culture.  Eschewing “conference style papers”, there will be three moderated, interactive panels on: 

•         Privacy and data protection; 
•         Crime; and 
•         Noise, nuisance and trespass 

drawing in delegate participation as much as possible. The aim of the event is to help the Society document its position on these non-technical aspects of RPAS applications.

For full programme and booking details follow this link.