Website Liability For Consumer Reviews: USA v. UK

Are website operators responsible for user comments in the US? What about in the UK?
Are website operators responsible for user comments in the US? What about in the UK?

Website Liability in the U.S.: Sections 230 of the CDA Provides Safe Harbor To Website Operators

Section 230 of the Communications Decency Act is one of the most significant Internet laws of our time. It provides safe harbor for website operators in the event a user posts defamatory or infringing content on their websites. It’s been argued that Section 230 is the provision that allowed the Internet to “take flight”, as websites had more freedom to experiment with user interaction and social media.

But a flip side always exists, and though it is a robust law, Section 230 of the CDA does pave an easier path for arguably corrosive platforms, like child and revenge porn websites. So, in an effort to combat such sites, attorneys general from several states have quietly waged a war on Section 230.

The outcome? Washington, Tennessee and New Jersey succeed in passing laws that ultimately dismantled the safe harbor provisions in the CDA.

Attorneys General Wage Low-Key War on Section 230

Those laws, however, didn’t last long. Backpage.com – a free classifieds site – moved forward with several lawsuits that questioned the constitutionality of the statutes. Ultimately, Backpage emerged victorious. Why? Perhaps the Tennessee trial court judge said it best:

The Constitution tells us that when freedom of speech hangs in the balance — the state may not use a butcher knife on a problem that requires a scalpel to fix. Nor may a state enforce a law that flatly conflicts with federal law. Yet, this appears to be what the Tennessee legislature has done in passing the law at issue.

In early 2013, New Jersey tried to illegalize child pornography in the Garden State by rendering Section 230 moot. But like Tennessee and Washington before, the NJ law was struck down. In this instance, though, poor wording was to blame for its demise. You see, section 230 is meant to make things “safer” online, but since the NJ law said a website must have knowledge about the offending material, it simply gave websites an excuse, if not an impetus, “not to know”, thereby nullifying the intent of Section 230.

Website Liability in the U.K.: EU Court Says Websites Are Responsible For User Comments

Our friends on the other side of the Atlantic have stricter Internet laws on the books. In fact, earlier this month, the European Court on Human Rights issued a judgment that effectively placed the onus of defamation liability on website operators – the exact opposite of Section 230 of the CDA.

Delfi AS v. Estonia: EU Officials Say Websites Are Responsible For Anonymous Posters’ Comments

Delfi is one of Estonia’s largest online news websites – think the CNN of Estonia. In 2006, Delfi ran a story about a ferry company’s contentious decision to change routes. As angry customers are wont to do, commentators took to Delfi’s website and let the insults rip. According to reports, the public was not kind. Death threats and insults filled the page.

Citing decreased business, the ferry company sued Delfi over “highly offensive or threatening posts about the ferry operator and its owner.” In 2008, an Estonia court ruled in favor of the ferry company and ordered Delfi to pay 360 euros worth of damages. Despite the small amount, Delfi decided to keep fighting and took the issue to the EU governing body. The news portal argued they were a “passive and neutral” conduit, as outlined in the European ecommerce Directive.

But the court didn’t agree with Delfi and handed down an eye-raising ruling. Officials on the European judicial board decided that the Estonia ruling should stand because it did not violate Article 10 (freedom of expression) of the European Convention on Human Rights.

Whoa Nelly. To Americans that understand the importance of anonymous political speech – the European Court’s ruling was alarming. Because what they’re basically saying is this: Anonymity is no longer an option. (What’s next, the Borg?)

What was the reasoning behind the European Court’s Decision?

How did the European Court come to this decision? It reasoned:

  1. It’s the responsibility of “domestic courts” to interpret what constitutes violation of domestic law. As such, the Estonian court was in compliance with the “prescribed by law” requirement of the EU convention.
  2. Under convention rules, member states can put limits on freedom of expression if it is to protect a person’s reputation, so long as interference is “proportional.”
  3. Delfi should have anticipated the offensive posts and “exercised an extra degree of caution.”
  4. Even though the website had a disclaimer saying posters were responsible for their own comments, plus a note banning “threatening and defamatory” comments, the site failed to remove certain posts, though they did remove others.
  5. Yes, the ferry company could have sued each commentator individually, but since users could register without providing identifying information, it was “reasonable” and “practical” for the ferry company to proceed with a claim against Delfi.
  6. Damages were small, plus the order didn’t include free speech-limiting language.
  7. The paltry amount of 350 euros was appropriate and “proportionate” to the violation.

Why Do Stateside Websites Need To Know About The European Ruling?

You may be thinking, “My website is in the U.S., I don’t have to worry about legal shenanigans on the other side of the Atlantic.” But Oh contraire, mon frere. Think again. Website operators in North American absolutely need to consider European Internet laws – because digital packets don’t recognize political boundaries. As Tim Worstall said, “commentary is to be judged by the jurisdiction where it is read, not where it is written or hosted.”

Now, if you don’t have assets in a given foreign jurisdiction, you have little to worry about. But if your goal is to grow your business, or target UK customers as a viable demographic, you’d better pay head to EU Internet laws. Because again, when it comes to content on the Internet, jurisdictional-lines don’t exist.

Do you need the help of an Internet law attorney? Kelly Warner focuses on all things related to the Internet and technology. Get in touch today to begin the conversation.

Yes, I Want to Speak with Someone about an Internet Law Issue »