ECHR ruling about website user comments, A website with user comments now liable for the comments Options

[user23]

I thought this was interesting in relation to thus forum.

If I read it right it says that the NWN are liable for anything we post on here.

[Andy Capp]

I thought this was interesting in relation to thus forum.

If I read it right it says that the NWN are liable for anything we post on here.

No it doesn't.

[user23]

No it doesn't.

Is it panto season already?

I'd say this was an internet news portal and therefore liable for the offensive online comments of its readers.

[Strafin]

Surprising they haven't banned you yet then User!

[Simon Kirby]

I thought this was interesting in relation to thus forum.

If I read it right it says that the NWN are liable for anything we post on here.

The ECHR has simply confirmed that the present situation as everyone understands it is perfectly legal and doesn't violate Article 10, ie, that a publisher of false and defamatory material is liable to prosecution and that the "publisher" isn't just the author, but is also the owner of the medium. NWN will know that perfectly well already because they can be sued for defamation if they publish defamatory statements in their newspaper, in the comments to NewburyToday stories, and of course in forum posts.

Your Article 10 right to freedom of expression is a qualified right and it doesn't give you an unlimited right to say what you like.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

[Andy Capp]

Is it panto season already?

I'd say this was an internet news portal and therefore liable for the offensive online comments of its readers.

That is still not strictly true. Have another go.

[user23]

The forum rules seem to suggest something different

We are not responsible for any messages posted. We do not vouch for or warrant the accuracy, completeness or usefulness of any message, and are not responsible for the contents of any message.

[Simon Kirby]

No it doesn't.

Yup, it does. The web site had claimed that holding it vicariously liable for the defamatory statements of its contributors was a violation of its Article 10 right to freedom of expression, but the ECHR said that it wasn't.

Of course this was in Estonia and although the interpretation of European Law is the same across all member states there's no particular reason why English Law should work in the same was as Estonian National Law in holding publishers vicariously responsible for the content they publish, but as it happens it does.

[Simon Kirby]

I'd say this was an internet news portal and therefore liable for the offensive online comments of its readers.

As it happens I think you're right, but your reasoning is wrong. The judgement was that the Estonian news group were not not responsible, but that's not the same as ruling that any other news group is responsible - vicarious responsibility for defamation is a matter for the country's domestic law, and that law can say what it likes as long as what it says is compatible with the Convention articles, and the ECHR was simply ruling that Estonian national law is compatible.

[Lolly]

And the damages awarded were 320E which I would imagine were more than covered by publicity around the case and further news content on the underlying issue.

[Andy Capp]

Yup, it does.

It certainly does not say: "the NWN are liable for anything we post on here". You even go on to contradict the quote in your following post!

[Andy Capp]

Had user23 said that the NWN could be held liable for a defamatory post on this forum, I would have agreed. but user23 used excessive language that distorted this point.

The ruling is not yet binding and as you have already pointed out Simon, there's nothing new in the ruling that didn't already exist. An article 10 test was made and it failed.

The forum legal noticed highlighted by user23 reminds me of the disclaimers companies put on their footers of email, broadly speaking it does not free the company of its obligations to prevent people using their computer system from being used to promote defamation.

[Simon Kirby]

Had user23 said that the NWN could be held liable for a defamatory post on this forum, I would have agreed. but user23 used excessive language that distorted this point.

The ruling is not yet binding and as you have already pointed out Simon, there's nothing new in the ruling that didn't already exist. An article 10 test was made and it failed.

The forum legal noticed highlighted by user23 reminds me of the disclaimers companies put on their footers of email, broadly speaking it does not free the company of its obligations to prevent people using their computer system from being used to promote defamation.

To clarify then, what I believe to be the situation in both Estonia and the UK:

1. Publishing false and malicious statements makes the publisher liable to prosecution for defamation.
2. The publisher includes both the author and the owner of the medium by which the statements are published.
3. Despite any notices to the contrary, both the web site owner and the author are the "publisher" of posts on a forum or comments on a news web site, and both are liable for any defamation.
4. Establishing the identity of the author is difficult so it is almost always easier to sue the web site owner.
5. The ECHR ruled that Estonian national law was not incompatible with the Article 10 freedom of expression.
6. UK law appears to be the same so it's reasonable to assume that UK law is similarly not incompatible.
7. The ECHR ruling changed nothing and just confirmed that the present situation is fine.

[Andy Capp]

That is how I see it Simon. I suspect user23 is unhappy at some of the language towards individuals in the past and would like the NWN to be less tolerant in the future, perhaps?

[motormad]

Goodbye freedom of speech!

[On the edge]

Goodbye freedom of speech!

This doesn't seem any different from the rules prevailing for print. All it's really attempting to do is clarify for the modern world - which is quite difficult in this electronic age.

So you'll still be OK!

[blackdog]

Goodbye freedom of speech!

Freedom of speech is an illusion, it does not exist. There are several laws that make one liable to prosecution for saying or writing certain things.

[Simon Kirby]

This doesn't seem any different from the rules prevailing for print. All it's really attempting to do is clarify for the modern world - which is quite difficult in this electronic age.

So you'll still be OK!

That's right, it's no different at all.

[Andy Capp]

In the context of posts on this forum, I wonder how user23 feels about things in this regard? I get the feeling user23 was issuing some kind of warning regards certain types of post? The cynical side of me thinks he's more concerned about the people on the receiving end, than he is about ones ability to post such material.

[Simon Kirby]

Freedom of speech is an illusion, it does not exist. There are several laws that make one liable to prosecution for saying or writing certain things.

Well, if you believe in an absolute right to freedom of speech then that's an illusion, or at least a misunderstanding. Your right under Article 10 of the Convention is this:

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

So you have a right to freedom of speech subject to some legitimate restrictions that the state can impose in order to protect the rights and freedoms of others, and there are indeed several pieces of statute and common law that limit your freedom of expression.

This is also often forgotten, but it's also only the state that is obliged to respect that right. Newspapers for example can censor your letters for publication and posts on their web sites as they please as they have no obligation to respect your right to receive and impart information and ideas.

But public authorities are required by law to respect your convention rights, and it is even unlawful if a public authority just does nothing when it was able to act to protect your rights. To some extent then you can enforce your Convention rights against non-state bodies when a public authority has the ability to intervene because the public authority must always act to uphold your rights.

But all of your Convention rights are only as good as your ability to enforce them, and if a public authority such as the Town Council is happy just to deny you your rights then in practice there's nothing you can do about it - and the Town Council is happy to deny you your freedom of expression, freedom of association, and your right to a fair trial.