Door Prof. Dr. N. Helberger
The decision of the European Court of Human Rights in the Delfi-case is a missed opportunity and a wrong signal. It could have brought some much needed differentiation for the regulation of the responsibility of the newsmedia for User Created Content (UCC). Instead, newssites – caught between their editorial responsibility and the luring of the safe-harbour provisions in the E-Commerce Directive – will continue to operate on the Murky Side of the law.
Background: liability for User Created Content under current law
Sites that host User Created Content can be potentially hold liable on various legal grounds: criminal and tort law, copyright law, media law, the rules on advertising, to name but some. Because liability for third party content can have serious legal, economic and organisational consequences for an organisation, the E-Commerce Directive excludes such liability for certain services, notably the so called ‘hosts’. A ‘host’ is essentially a technical service, having neither knowledge nor control over the content stored. Internet hosts cannot be held liable for the lawfulness of third party content until they acquire actual knowledge of illegal activities or information. Once and only when they do so, e.g. because they were notified by an aggrieved party, a host has to act ‘expeditiously’ to remove or disable access to that content (the so called ‘notice-and-take-down’ procedure). If he fails to do so, national courts can hold the host fully liable for third party contributions according to the general rules.
The question of the conditions under which traditional or new media platforms qualify as hosts rather than as publishers of UCC is not an easy one to answer (for some guidance see here). It can certainly not be answered in general; the decision will depend on the individual business model of a news provider and the manner in which it integrates UCC. If a newssite does no longer qualify as a host of UCC, it will find itself at the other end of the spectrum: within the legal and ethical provisions about editorial responsibility: because editors are typically fully aware and in control of the content of a newspaper or newssite they have to face full responsibility for all the contributions, including those from third parties.
The need for a more differentiated approach
Due to today’s all-or-nothing-approach towards intermediary liability, newssites that host UCC find themselves in a most problematic situation. There can be many good and necessary reasons to invite and give room to contributions from their users: fostering the relationship with the audience, generating loyalty, exploring new ways of reporting, innovating their democratic role as a critical watchdog and facilitator of the public discourse, as well as discovering new material. Particularly for smaller, regional newspapers UCC can be an important source of content, commentary and feedback from the readership. When integrating UCC on their websites, the newsmedia are, on the one hand, committed to their brand, their good name and their own quality requirements. On the other hand, giving UCC the same editorial attention as in-house content is extremely resource intensive, costly and sometimes simply not feasible – because of the sheer mass and the diversity of the users’ contributions. Still, some newsmedia have proven to be rather inventive when it comes to ensuring the quality of UCC. Unfortunately, however, the more a publisher or editor is involved with the contents that it hosts, the less likely it is to qualify as hosting service in the sense of the E-Commerce Directive. And if a newssite does not any longer qualify as ‘host’ of User Created Content but as its publisher, the consequence is full legal responsibility for the readers’ contributions. What is still lacking is a more differentiated approach that would allow newssites to exonerate themselves from legal responsibility if they adopted certain, clearly defined steps to ensure the quality and lawfulness of UCC, respectively make it possible to hold the true authors accountable.
Missed opportunity and wrong signal
In the search for such an approach, the decision of the Court of Human Rights is not helpful at all. Though pointing repeatedly to the need for a more differentiated approach, it essentially does the opposite: in one rather general, and particularly undifferentiated sweep it moves newssites into the direction of full-editorial responsibility. The requirement that websites must remove ‘clearly unlawful content’ in own initiative and even without notice (contrary to what the E-Commerce Directive requires) means in practice pre-moderation of all user contributions. How else can an editor determine whether a content is ‘clearly unlawful’ or not? For newssites this would mean the need to either hire a small army of special editors – as Delfi did, to reduce the possibilities for users to contribute to uncontroversial and preferably meaningless instances of reporting, or to say farewell to UCC altogether. Particularly for smaller, regional newspapers who cannot afford extra editors the latter approach is the most likely one to be taken.
Some words about the practical consequences of the Delfi case: After all, not all member states have – at least currently – a similar radical approach to intermediary liability of newssites as Estonia does. And the decision of the European Court of Human Rights cannot replace those of national courts or lawmakers (even though it may influence them). It is, however, also important to notice that in the Netherlands, the Raad voor de Journalistiek has specifically addressed the issue of UGC and declared editors principally responsible. Though the Council does not impose a general pre-moderation obligation, it does stipulate that editors must check UGC for libel and defamatory content.
The decision of the European Court of Human Rights is in the first place an important signal in a time that the trend towards imposing more responsibilities on intermediaries is in full swing. Judgements such as the Google Spain Case of the European Court of Justice or the Dutch Pirate Bay case reflect a strong push for expanding the responsibilities of hosts: for pragmatic reasons (difficult to get hold of individual offenders), reasons of fairness (in the case of sites that profit commercially from third party content) or efficiency considerations (intermediaries are often in a better position to end offensive behaviour). Freedom of expression considerations and the proper functioning of the press do generally not figure prominently in these debates. And this is why it is so worrisome that the Court did fail to estimate the effects of its decision on not only the business model of the newsmedia, but also on the democratic function of media in general. The Courts self-convinced assurance that ‘a large news portal’s obligation to take effective measures to limit the dissemination of hate speech…can by no means be equate to “private censorship” sounds rather hollow. What are “effective measures”? How feasible are such measures for smaller, less popular newsmedia than Delfi? What guarantees are there that newssites will not preventively reduce all UCC to non-consequential lifestyle news, or remove systematically (automatically) comments that are only remotely controversial? And how about safeguards that newssites must place back contents that they did wrongly remove? Also this is an aspect of freedom of expression.
Fact is: the hosting provisions in the E-Commerce Directive, and the national rules implementing them, do not fit well the situation of the newsmedia. Holding the press fully responsible for UCC, i.e. to the same degree that the press is responsible for its own (professional) editorial content, does not only exceed the practical possibilities of the press. It also has a chilling effect on the integration of amateur journalism and user participation. In the worst case, it would result in private censorship and in abandoning the amateur as potentially useful, critical and independent source of news content. And this insight is not even a new one: for decades national media laws and ethical codes of conduct have included press-specific exemptions from the legal responsibility of newspapers for users’ contribution (in the form of readers’ letters or appearances of users on life shows). Exemptions from legal liability vary from complete exemption (Belgium) to reduced duties of care (German) for announcements and reader’s letters (an overview of the different solutions can be found here). It is high time to adapt these rules to the demands of the digital newsmedia.
Natali Helberger is als hoogleraar verbonden aan het Instituut voor Informatierecht van de UvA. Natali is lid van het curatorium van de Stichting Media-Ombudsman Nederland.