Tag Archives: defamation

Information Law and Policy Centre’s annual workshop highlights new challenges in balancing competing human rights

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Our annual workshop and lecture – held earlier this month – brought together a wide range of legal academics, lawyers, policy-makers and interested parties to discuss the future of human rights and digital information control.

A number of key themes emerged in our panel sessions including the tensions present in balancing Article 8 and Article 10 rights; the new algorithmic and informational power of commercial actors; the challenges for law enforcement; the liability of online intermediaries; and future technological developments.

The following write up of the event offers a very brief summary report of each panel and of Rosemary Jay’s evening lecture.

Morning Session

Panel A: Social media, online privacy and shaming

Helen James and Emma Nottingham (University of Winchester) began the panel by presenting their research (with Marion Oswald) into the legal and ethical issues raised by the depiction of young children in broadcast TV programmes such as The Secret Life of 4, 5 and 6 Year Olds. They were also concerned with the live-tweeting which accompanied these programmes, noting that very abusive tweets could be directed towards children taking part in the programmes.

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MTE v Hungary: New ECtHR Judgment on Intermediary Liability and Freedom of Expression

Christina Angelopoulos is a post-doc researcher at the Information Law and Policy Centre of the University of London. She wrote her PhD on intermediary liability in copyright at the Institute for Information Law (IViR) of the University of Amsterdam. In the following piece, she analyses the recent judgment of the ECtHR in MTE v Hungary. The post was originally published on the Kluwer Copyright Blog.

On 2 February 2016, the European Court of Human Rights (ECtHR) delivered its first post-Delfi judgment on the liability of online service providers for the unlawful speech of others. Somewhat puzzlingly, the Court reached the opposite conclusion from that of last summer’s controversial Grand Chamber ruling, this time finding that a violation of Article 10 of the European Convention on Human Rights (ECHR) had occurred through the imposition of liability on the applicant providers. While in principle therefore the judgment is good news for both internet intermediaries and their end-users, the ruling does little to dispel the legal uncertainty that plagues the area: attempting to reverse and head off in the right direction, the Court still finds itself falling over the stumbling blocks it set out for itself last year. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]

Is data protection the new defamation?

“If the headline asks a question, try answering ‘no'” says Andrew Marr in My Trade (2005, p. 253).

The answer to this post’s headline, as I see it, is a bit uncertain. I ignored Betteridge’s Law and used the same question as a title for a presentation at the University of Winchester’s Conference on Trust, Risk, Information and the Law (#TRILCon15) in April 2015 because I’d seen it popping up on Twitter (for example: here and here), and a piece in the Economist describing a ‘new front’ in media law.

spenceThe question of whether data protection  is superseding defamation can’t be answered definitively because of the inadequate data on defamation and data protection. I’ve set this out in more detail in a post on the Inforrm blog and the LSE Media Policy Project.

In April, I answered the question with a “not yet, no”, but it is becoming (or should be) an area of increasing concern for news organisations and journalists, which will need careful scrutiny and further research.

Things are certainly changing in terms of the impact of Article 8 of the Human Rights Act and the Data Protection Act 1998 on journalism and online publishing, but I’m not convinced that either, or both, have totally overtaken libel. My research in 2011-13 indicated that libel was still the major concern and preoccupation for bloggers, journalists and media lawyers.

And defamation certainly isn’t dead. There are two interesting defamation related developments to report since I wrote that post.

The first is a case described by the Times as ‘libel tourism’, a phenomenon that better data would allow us to monitor properly (cf. this Guardian’s piece – another one with a question in the headline).  Although the claimant  in Sloutsker v Romanova (Rev 1) [2015] EWHC 2053 (QB) (16 July 2015) lives outside the jurisdiction and the material complained of was published on Russian websites by a journalist living in Russia, the judge “concluded that the claim involves a real and substantial tort in this jurisdiction, and that England is clearly the appropriate place in which to try the claim” [para. 12; para. 100 Sloutsker v Romanova [2015] EWHC 545 (QB) (05 March 2015)]. He awarded the claimant £110,000 in damages.

The second is not a defamation case, but a Supreme Court decision that relates to the issue of costs in privacy and defamation proceedings, since it discusses at length the ECtHR’s rejection of the pre-LASPO Conditional Fee Agreement regime in MGN v United Kingdom (Coventry & Ors v Lawrence & Anor [2015] UKSC 50 (22 July 2015)). As 5RB notes here, “by a majority of 5-2 the Supreme Court held that the pre-LASPO CFA regime, which remains applicable in a small minority of claims including privacy and publication cases, is compatible with the ECHR“. More on the UK Human Rights blog here.

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’.

Upcoming seminar, School of Advanced Study: Legally navigating academic blogging and social media – 29 April

On Wednesday lunchtime, I’ll be giving a talk at the regular Social Scholar seminar, at the School of Advanced Study, on legal issues for academic bloggers and social media users (all welcome):

While social media tools are fantastically liberating for academic communication, users need to be aware of the legal and ethical context. Those trained in journalism or law will probably be aware of the most important media and communication-related laws, but my research suggests there are many bloggers and social media users who are uncertain about the boundaries of legitimate speech. What’s more, the complexity of UK media law (and high cost of resolving a civil dispute) makes it an uncertain environment for even the most experienced and legally astute. My contribution to the Social Scholar series will discuss the main legal issues for academic bloggers and social media users, point towards useful guides, and offer some thoughts on how legal resources and systems might be improved.

Details

  • Speaker: Dr Judith Townend (Director, Centre for Law and Information Policy, IALS/SAS)
  • Time: Wednesday 29 April 2015, 1pm-2pm
  • Location: Room 246 (Senate House, 2nd Floor)
  • All welcome! No prior registration needed. For full details see the Event Page