Analysis: Brexit could remove EU legal protection for comments on news websites

This is the second article in my series about the possible effect of Brexit on media law. I examined copyright earlier this month.

This article looks at the future of reader comments on message boards.

As I said in my last article, it’s impossible to give firm predictions, as everything depends on the UK’s Brexit negotiations.

If the UK joins the European Economic Area, then some EU laws will be reintroduced into UK law.

If it doesn’t, then EU laws won’t apply in the UK unless they are reintroduced by new Acts of Parliament.

Reader comments on message boards are currently protected by the EU Electronic Commerce Directive (ECD) Regulations 2002.

This law means publishers are not liable if a reader defames someone, or breaks another law, provided:

The publisher does not moderate or edit the content, and
Operates a ‘report and remove’ system and take down offensive posts quickly if it receives a complaint.

If the UK decides not to continue with the ECD, then libellous comments will not be affected, as our own Defamation Acts of 1996 and 2013 provide similar defences.

However, the UK would need to introduce its own act extending ‘report and remove’ to breaches of other laws.

This might actually be a good thing, as there are signs that the EU may water down the ECD’s protection.

In 2015, the European Commission (EC) launched a consultation that included looking at the ECD.

The commission’s preliminary findings floated the need for new measures to tackle illegal internet content, and … “whether to require intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems – a duty of care.”

The EC will be publishing a final report in due course.

But if it recommends that website operators have a duty of care over their content, then the days of unmoderated contributions and the ‘report and remove’ system could be over.

This issue must be seen alongside a surprise decision by the European Court of Human Rights last year in the case Delphi v Estonia.

Delphi, a large Estonia news site, published a story about a ferry company’s controversial decision to change its routes. The article attracted more than 180 comments, including 20 that threatened and abused the ferry company’s majority shareholder.

The ferry company sued for libel and won its case and an appeal under Estonian libel law, even though Delfi removed the comments quickly after receiving a complaint.

The ECHR eventually ruled against Delphi in a final appeal. The decision appeared to contradict the ECD, and showed that there are some circumstances when ‘report and remove’ cannot be relied upon.

This case, and the possibility of the EU introducing a ‘duty of care’ for website operators, may mean the UK decides to introduce a law that preserves the existing arrangements on non-moderation and ‘report and remove’.

That would be good for the freedom of expression.

Cleland Thom is author of Online law for journalists