Update

ARTICLE 19 to European Court: bloggers should not be liable for user-generated content

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ARTICLE 19

19 Mar 2013

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Today, ARTICLE 19 filed third-party intervention submissions in the case of Jezior v Poland (no. 31955/11), currently pending with the European Court of Human Rights. The case concerns the liability of a municipal councilor, Mr Jezior, for allegedly defamatory comments posted by a third party on his blog about B.K. The comments alleged that B.K. had committed a number of offences. Despite the applicant’s removal of the comments on several occasions, the courts concluded that he should be held liable for the comments on the basis of an electoral law.  At the same time, the Court of Appeal concluded in another set of proceedings brought on the basis of a privacy law that the applicant should not be held liable.

ARTICLE 19 believes that this case presents the European Court with an important opportunity to address the rules governing intermediary liability, which have a major impact on freedom of expression online. In our submissions, ARTICLE 19 addresses the following:

  • General considerations about blogs and liability online;
  • Relevant international standards and comparative law material on notice and takedown procedures;
  • Our recommended approach to liability of bloggers for third-party comments consistent with the right to freedom of expression; and
  • A number of factors that should be taken into account in online defamation cases.

ARTICLE 19 concludes that:

  •  Notice-and-takedown provisions fail to provide the level of legal certainty and procedural fairness required under Article 10 ECHR;
  • Bloggers should not be considered responsible for third-party comments as publishers in circumstances where they have not specifically intervened in the content at issue.  This is equally true when bloggers put in place a moderation system. To hold otherwise would have a serious chilling effect on freedom of expression.
  • Insofar as courts are required to apply notice-and-takedown provisions, we submit that as a minimum, the courts should be slow to hold bloggers liable for third-party comments in circumstances where the complainant has (a) failed to identify the location of the content at issue; or (b) failed to clearly identify the unlawful nature of the content at issue. Moreover, we consider that the term ‘expeditiously’ should be applied sufficiently flexibly to meet the circumstances of the particular blogger at issue.
 

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