20 Jan 2017

Webmasters Are Responsible for Defamatory Comments

The Legal Issues behind online comments

The decision about whether or not to allow comments on your website or blog has recently began to become a quite crucial issue for a webmaster to face.

It is undeniable that allowing the posting of comments on a site may generate and open up new levels of interaction and constitutes an opportunity for free content. While plugins and filtering services exist to help bloggers dealing with new issues deriving from comment spam, conversely there is still a lack of legislative help to face the set of entirely new potential legal concerns.

Giving strangers free reign to post information to your site, without any editorial oversight, implies some serious risks of liability for webmaster, as exchanges of comments may get heated and involve negative statements about third parties.

Some of the major problems of websites as a tool for spreading information are linked to the fact that they often allow for users to post content anonymously or they are not always easy for webmasters to edit. As a result, publishers in many jurisdictions can be held liable for the content which is posted by their users.

Until now, Italian legislation dealing with comments on the Web has been largely designed to protect Webmasters and most of the legal concerns that stem from allowing comments on your blog have been easily dealt with.

Recently however, the Italian Supreme Court is changing tack, and by confirming the decision of the Court of Appeal, in open contrast with part of European jurisprudence, has condemned the legal representative of a company which runs an Internet site in the football industry because of an offensive comment published by a user of the site.

From now on hence, the person running a web-site or a blog manager will be held responsible for comments to be considered as defamatory, even though left anonymously. He will risk a criminal conviction, which in the mentioned case was equal to a high fine of 60 thousand euros’ compensation.

The ruling is clearly in a blatant contrast with another recent trend – February 2016 – followed by the European Court of Human Rights, which in accordance with a notorious European interpretation of the matter, acquitted the managers of a Hungarian web-site suited for having hosted anonymous offensive comments.

The facts in the Italian Decision arise in 2009, when the user of a site operating in the football field attacked the current President of the Italian Football Federation (FIGC), Carlo Tavecchio, at the time President of the National Amateur League of the FIGC, defining him as “a scoundrel of the highest order” and a “criminal offender” in a comment in the web-site community, posting as well Tavecchio’s criminal record. This happened without any approval by the administrator of the site.

In the proceeding at first instance, the runner of the site has been acquitted by the Court, its defence succeeding to demonstrate that he was not aware of the comment. The Court of Appeal conversely found his conduct as criminally punishable, qualifying it as aiding defamation, and imposed a quite severe fine. According to the judges indeed the manager could not have been unaware of this information.

The Supreme Court confirmed the interpretation of the Court of Appeal, claiming that the fact the defendant sent Tavecchio’s criminal record to the webmaster was a sign clearly incompatible with the alleged unawareness of what has been published.

The Italian decision got to be read taking in particular account the fact that the conviction lies not on the webmaster status per se (the so-called liability per se), but what the judges maintained is that the criminal liability does not directly derive from the existence of a defamatory comment, but is the consequence of the non-removal of the comment after the webmaster had knowledge of it having been posted.

Obviously, although with the appropriate caution required by the limits fixed by the case, it appears quite reasonable to imagine webmasters to start to promote a more careful managing of their sites and blogs in order to avoid criminal convictions, with particular attention to the removal of comments potentially dangerous for their criminal record. There is however as well the risk of an excess of prudence, which can undermine freedom of expression characterising the internet and web world.

New questions open also in the social networking. Do potential convictions as the one of the case affect these kind of communication tools? Are the webmasters the sole to be held responsible for changing their control and managing policies regarding comments of the users, or should social networks ‘managers like Facebook worry about this issue?

This question is still opened and only time will give us the answers to our doubts, but it is pretty clear up to now that there is a strong duty of care required in publishing and hosting comments in blogs, web-sites and social pages.

The decision of the Italian Supreme Court in fact implies a significant change of direction per Italian jurisprudence, in comparison with the European one, even though until today there was no unique interpretation of the matter.

Freedom of expression still exists but it has to be balanced with the right of image protection of each citizen and therefore every conduct qualified as defamatory shall be carefully analysed and evaluated, according to the circumstances of the case.

It becomes clear then that the judges will exercise particular care in dealing with the crime of online defamation, due to the delicate issues regarding freedom and rights which lie underneath. But not only. Lawyers as well will play a delicate role in protecting freedom of expression and human dignity. They will be the one called to support the judges in finding the correct balance between essential values of symbols of democracy, whether of context of communication, being virtual or real.

Daniela Pacino

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