Human Rights Law and Regulating Freedom of Expression in New Media

Lessons from Nordic Approaches

Mart Susi, Jukka Viljanen, Eiríkur Jónsson, Artūrs Kučs

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138497894
• eBook ISBN: 9781351017572
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Nordic countries are well known globally for their high human rights standards and, at the same time, high degree of internet freedom. This edited collection reveals how the Nordic countries have succeeded in the task of protecting freedom of expression in the new media. It contains an overview of public policy choices and best practices of domestic online companies, which have the aspiration of finding global acceptance.

Reviewing the topic of freedom of expression in new media within Nordic and Baltic countries, this book incorporates both general themes and interesting country-specific themes that will provide wider knowledge on the development of freedom of expression and media law in the online media era. A comprehensive analysis of regulation of online media, both at the level of legislation and application of law in courts and other authorities, are included. This book will contribute to the ongoing discussion as to whether there is a need to modify prevailing interpretation of freedom of expression.

Human Rights Law and Regulating Freedom of Expression in New Media focuses on the multi-layered and complicated relationship between internet and human rights law. It contributes to the ongoing discussion regarding the protection of freedom of expression on the internet in the context of various doctrines of constitutional law, including the proliferation of constitutional adjudication. It will be of interest to researchers, academics, policymakers, and students in the fields of human rights law, internet law, political science, sociology, cultural studies, media and communications studies and technology.

1 Introduction

Mart Susi, Jukka Viljanen, Eiríkur Jónsson and Artūrs Kučs

In the new media landscape, the prevailing doctrines concerning freedom of expression are under review. Contemporary democratic societies are facing an unprecedented challenge to balance freedom of expression against the right to privacy in the new media environment. The rapid development of the internet has led the international legal communities, media enterprises and the civil society to question the adequacy of traditional methods of regulating the freedom of speech vis-à-vis the right to privacy. A new paradigm is emerging, whereby the task of achieving effective realisation of both these significant rights is moving away from the vertical power structures towards horizontal accountability of media enterprises in relation to new media users.

In the aftermath of the European Court of Human Rights’ (ECtHR) Grand Chamber judgment in Delfi AS v. Estonia (16 June 2015),¹ there has been a strong need for a scholarly contribution to the discussion about the new media. The Nordic Council provided NORDPLUS funding for our Law and Media network at just the right moment. Our network was founded as a co-operation between Tallinn University (Estonia), University of Iceland, University of Latvia and University of Tampere (Finland). Nordic and Baltic countries are the avant-garde of new media applications. In addition, they are well-known for their good records on freedom of expression. Four Nordic states (Norway, Sweden, Finland and Denmark) are topping the recent World Press Freedom Index according to Reporters Without Borders.²

This book shows Nordic and Baltic practices in the new media era and the articles that follow combine the different levels of protection, national, regional and global, under the same theme. The European Convention on Human Rights (ECHR) is often described by the Strasbourg Court as a “living instrument”, which means that it should be interpreted in light of present day conditions. The book illustrates the similarities, but also the divergence of practices. The national traditions are embedded in the legal culture and this is also relevant in the field of media. Celebrating 250 years of freedom of the press in Sweden and Finland (2 December 1766) perfectly demonstrates the long Nordic and Baltic tradition.

The ECtHR itself acknowledged both the benefits and dangers of the internet. The Court noted at the outset that user-generated expressive activity on the internet provides an unprecedented platform for the exercise of freedom of expression. Dangers are related to the dissemination of “defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence”. This might happen in a manner like “never before, worldwide, in a matter of seconds, and sometimes remain persistently available online”.

This book contributes to the existing debate and reflects on the dialogue between national courts and legislators and the ECtHR in Strasbourg. It also answers questions that are related to cross-fertilisation. New practices are emerging in a dynamic setting, often via self-regulation, but new practical changes that happen in the new media also require vigilance at all levels. As the Strasbourg Court often mentions, national courts and authorities have a certain margin of appreciation, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is, therefore, empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 of the ECHR. However, the introduction of a “strong reasons” approach means that if national courts have found a fair balance in conformity with the criteria laid down in the Strasbourg case law, there must be strong reasons for the Court to substitute its own view for that of the domestic courts.

In the opening article, Judge Robert Spano (ECtHR) discusses Intermediary liability for online user comments under the European Convention on Human Rights. According to his interpretation, the Court has chosen a middle ground between two opposing viewpoints on the regulation of the internet: one advocating for an environment free from regulation of online conduct and the other campaigning for a regulated internet, where the same legal principles apply both online and offline. It seems that dramatic forecasts made by critical scholars have not revolutionised the practice after the Delfi judgment. However, it is clear from the concluding article by Artūrs Kučs and Jukka Viljanen, contributing to the doctrinal discussion between human rights supervisory bodies, what further guidance from the Strasbourg Court would be required. They conclude that the Court should address concepts of media neutrality, online media as a democratic platform, expansion of the definition of journalists, the chilling effect and censorship in new media.

In Chapters 3–10 there is provided in-depth country by country analysis on the freedom of expression in Nordic and Baltic countries and in the specific context of new media. These chapters are written by experts of the national freedom of expression doctrines. Chapters introduce media landscape, institutional setting, relevant national legislation, case-law and practices including the dialogue with the European Court of Human Rights. In their article, Mart Susi and Eiríkur Jónsson conclude that the Nordic countries exhibit restraint in incorporating the new principle of horizontal governance and the authority of private online portals to assess user content into national human rights regulation.

In sum, several difficult questions are raised in the book: How does the chancing concept of a journalist in the new media influence the outcome of the protection? Why does the concept of horizontal governance remain in a state of contestation and is not yet a generally accepted principle in the European and global human rights landscape?

The underlying message of this book is that developing freedom of expression doctrines should be in accordance with the 2016 United Nations Human Rights Council resolution on the promotion, protection and enjoyment of human rights on the internet,³ which affirms that “the same rights that people have offline must also be protected online”.

1 Delfi AS v. Estonia, Grand Chamber, 64569/09, 16.6.2015.

2 Reporters without borders. World Press Freedom Index https://rsf.org/en/ranking

3 A/HRC/32/L.20 The promotion, protection and enjoyment of human rights on the Internet, HRC Adopted as orally revised 1.7.2016.

2 Intermediary liability for online user comments under the European Convention on Human Rights

Robert Spano^1*

Preliminary remarks

The Internet has transformed modern society, including the law. In almost all fields of law the Internet’s influence on the development of existing principles and rules is currently being analysed and examined, including in the field of human rights law. Due to the advent of the Internet, numerous conceptual and practical problems have arisen in connection with the right to privacy, freedom of expression and the right to property. In this article,² I will discuss the recent case-law of the European Court of Human Rights (hereinafter ‘the Court’ or ‘the Strasbourg Court’) dealing with freedom of expression when contracting States are faced with questions relating to the imposition of liability for unlawful³ user comments which are posted anonymously online or under a pseudonym. The Strasbourg Court has recently delivered judgments in two cases, including in a Grand Chamber case, where the Court, for the first time, has had to formulate the general principles to be applied when an assessment is made of the latitude that contracting States have under Article 10 of the European Convention on Human Rights (hereinafter ‘the Convention’) to impose liability on online intermediaries for unlawful comments posted on their websites by anonymous users.

The ‘unprecedented’ nature of the Internet – opposing viewpoints on its regulation

It is axiomatic that the Internet has had a dramatic impact on the form, scope, and patterns of human communications. Unlimited and rapid access to vast amounts of information, whether through smartphones, tablets or other Internet communication devices, has reshaped modern societies around the world. It is thus not surprising that the Strasbourg Court has held that ‘user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression’.⁴ The Court has, however, been mindful that such positive developments may harbour some negative side effects. Hence, the Court has declared that alongside the Internet’s benefits

certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online.⁵

In other words, difficult tensions arise on the Internet between freedom of expression on the one hand, and the right to privacy and personality rights on the other.

There are two diametrically opposing views within the ongoing debate on whether and to what extent the Internet should be regulated. On the one hand, it has been argued that the sui generis nature of the Internet and its impact on human relations require that governments (and even private stakeholders such as large online social media and communication networks)⁶ refrain from imposing regulatory measures of any kind. The Internet should be a wholly free environment where users are granted unlimited discretion. On the other hand, a contrary viewpoint has been elaborated. Under this view, the same legal principles should apply offline and online. Although the Internet may require the reformulation and adaptation of some classical legal principles, due to its special nature and impact, the Internet cannot become a legal vacuum where no rules exist.

As I will discuss below, the Strasbourg Court’s first judgments in this field suggest that the Court is attempting to find a middle ground between these opposing viewpoints so as to secure the beneficial effects of the Internet, in particular as regards freedom of expression, while at the same time safeguarding other fundamental rights, in particular the right to reputation and the right to privacy.

Differing forms of liability for anonymous and defamatory comments on the Internet

The advent of Web 2.0 technologies and applications have enabled everyday Internet users, who were previously mere consumers of online content, to publish their own content on various websites, such as blogs, consumer-evaluation platforms (such as Amazon, eBay, and TripAdvisor), news websites (through reader comments), social networking services (such as Facebook, Twitter, and LinkedIn), media-sharing websites (such as Instagram and YouTube), and collaborative-writing projects (such as Wikipedia).⁷

It is to be expected, then, that online user contributions may sometimes take the form of content that is unlawful. One of the most complex and intriguing legal questions in this context is who should be liable for defamatory statements made online by anonymous (or pseudonymous) users. Recently, it has convincingly been argued by Professors Perry and Zarsky that the legal response to online anonymous defamation should be viewed and analysed as a combination of two components. The first is the ability (or inability) to bring an action against the content provider, namely the platform displaying the unlawful statement. Such an action may require modification of substantive law through the recognition of some sort of indirect liability. The second component is the ability (or inability) to bring an action against the speaker, that is, the anonymous user. Such an action does not usually require the modification of substantive defamation law, but does entail an adaptation of procedural law such as to establish a de-anonymisation process⁸.

Because this framework provides two potential defendants, each of whom can be either liable or non-liable, there seems at first glance, according to Professors Perry and Zarsky, to be four possible liability regimes. In the first, neither the speaker nor the content provider is liable. This option does not seem to exist in any jurisdiction, and for good reason: forgoing liability undermines the delicate balance that has developed in defamation law between the right to reputation and freedom of speech. In the second, only the speaker is liable (exclusive direct liability). This is in substance the framework adopted in the United States under Section 230 of the Communications Decency Act of 1996. In the third, only the content provider is liable (exclusive indirect liability)⁹, or, in the fourth, both may be liable. The latter framework has a basis in the EU E-Commerce Directive 2000/31/EC.¹⁰

Professors Perry and Zarsky reject the above-mentioned options. In their view, the most efficient solution to the problem of anonymous unlawful speech online lies beyond these four classical categories and involves an innovative combination of direct and indirect liability. In a legal regime they call it residual indirect liability¹¹, the speaker is exclusively liable, but where he or she is not reasonably reachable, the content provider becomes liable. They observe that a version of this framework has been adopted in the Defamation Act 2013 in the United Kingdom¹².

It is important to stress at the ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Notes on contributors
• 1 Introduction
• 2 Intermediary liability for online user comments under the European Convention on Human Rights
• 3 Freedom of speech and online media in Denmark
• 4 Estonia – raising high the roof beams of freedom of expression: New media environment in Estonia
• 5 Finland
• 6 Icelandic online media law and the ECHR
• 7 Regulation of online media in Latvia
• 8 Human rights law and regulating freedom of expression in new media: Lithuania
• 9 Regulation of online media in Norway
• 10 Internet, freedom of expression and the right to privacy in Sweden
• 11 Comparative analysis of the Nordic/Baltic approaches and standards
• 12 Updating freedom of expression doctrines in the new media cases: lessons from Strasbourg and other international treaty bodies
• Index