Internet Gatekeepers as Editors – The Case of Online Comments

Abstract

This paper discusses certain liability issues related to a specific type of micro-gatekeeper, namely the “comments”, i.e. the reader’s input on a piece of content appearing on a website, typically published in such a manner that the contributor cannot be identified (i.e. anonymously). The right to freedom of the press initially served the purpose of defending the “media”, i.e. content produced by using professional methods. However, content created by users is also entitled to at least the right to freedom of speech, even where compliance with professional-ethical standards cannot be expected from them. At the same time, the media, or other content providers recording their content or providing an interface for them can theoretically be liable for content created by their users, and so it must be decided whether potentially unlawful user content should be recorded (or to consent to its publication on their interfaces).

In addition to a general overview of the gatekeepers' “editorial” activity, this paper discusses three comment-related cases that have emerged so far in the case law of the European Court of Human Rights (hereinafter “ECtHR”), focusing on the issue of the extent to which a website’s content provider can be considered an "editor” with regard to comments, and when it can be held responsible for unlawful user-written views. In these cases, we can see the conflict between the rights afforded in two Articles of the European Convention on Human Rights (hereinafter “ECHR”): while Article 10 protects freedom of expression, Article 8 protects the right to privacy. In the case law of the ECtHR, Article 8 also includes the protection of the right to respect for one’s reputation, and the right to honour, the violation of which is most often raised in comment-related cases; at the same time, comments can display personal information that violates the right to privacy.