In Ancient Greece the oracle at Delphi was notorious for speaking in riddles. The European Human Rights Court’s judgement in Delfi v Estonia is similarly puzzling.
Back in 2006 an anonymous reader made a comment on a newspaper website; six weeks later the comment was removed following a claim that it was defamatory. In 2008 an Estonian court nonetheless found the newspaper liable for the defamation and awarded around €320 in damages. This seems to conflict with the European eCommerce Directive, which protects hosting services from liability for material they are not aware of. But for some reason the Estonian law was challenged on the grounds that it infringed the human right to communicate, not because of the apparent conflict with EU law.
Thus it was the European Court of Human Rights that ruled this week that the Estonian law does not conflict with Human Rights, and that national laws that create liability for hosting providers may be permitted under the Convention in some circumstances (“The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them” [para 115]). Whether such a law would be compatible with the eCommerce Directive remains an unanswered question. As various commentators have observed, this leaves hosting liability in an uncertain state.
The decision shouldn’t be an immediate problem in the UK – our Defamation Act 2013 actually provides stronger protection than the eCommerce Directive and for other types of unlawful content our Electronic Commerce (EC Directive) Regulations 2002 appear to match its provisions. Websites in the UK should continue to be protected from liability for third-party material at least until they have knowledge of it. However if a future UK law were to modify that liability regime then Delfi might mean that any challenge would need to be made under European law, rather than the Human Rights Convention.