EFF to European Court: No Intermediary Liability for Social Media Users

Courts and legislatures around the globe are hotly debating to what degree online intermediaries—the chain of entities that facilitate or support speech on the internet—are liable for the content they help publish. One thing they should not be doing is holding social media users legally responsible for comments posted by others to their social media feeds, EFF and Media Defence told the European Court of Human Rights (ECtHR).

Before the court is the case Sanchez v. France, in which a politician argued that his right to freedom of expression was violated when he was subjected to a criminal fine for not promptly deleting hateful comments posted on the “wall” of his Facebook account by others. The ECtHR’s Chamber, a judicial body that hears most of its cases, found there was no violation of freedom of expression, extending its rules for online intermediaries to social media users. The politician is seeking review of this decision by ECtHR’s Grand Chamber, which only hears its most serious cases.

EFF and Media Defence, in an amicus brief submitted to the Grand Chamber, asked it to revisit the Chamber’s expansive interpretation of how intermediary liability rules should apply to social media users. Imposing liability on them for third-party content will discourage social media users, especially journalists, human rights defenders, civil society actors, and political figures, from using social media platforms, as they are often targeted by governments seeking to suppress speech. Subjecting these users to liability would make them vulnerable to coordinated attacks on their sites and pages meant to trigger liability and removal of speech, we told the court.

Further, ECtHR’s current case law does not support and should not apply to social media users who act as intermediaries, we said. The ECtHR laid out its intermediary liability rules in Delfi A.S. v. Estonia, which concerned the failure of a commercial news media organization to monitor and promptly delete “clearly unlawful” comments online. The ECtHR rules consider whether the third-party commenters can be identified, and whether they have any control over their comments once they submit them.

In stark contrast, Sanchez concerns the liability of an individual internet user engaged in non-commercial activity. The politician was charged with incitement to hatred or violence against a group of people or an individual on account of their religion based on comments others posted on his Facebook wall. The people who posted the comments were convicted of the same criminal offence, and one of them later deleted the allegedly unlawful comments.

What’s more, the decision about what online content is “clearly unlawful” is not always straightforward, and generally courts are best placed to assess the lawfulness of the online content. While social media users may be held responsible for failing or refusing to comply with a court order compelling them to remove or block information, they should not be required to monitor content on their accounts to avoid liability, nor should they be held liable simply when they get notified of allegedly unlawful speech on their social media feeds by any method other than a court order. Imposing liability on an individual user, without a court order, to remove the allegedly unlawful content in question will be disproportionate, we argued.

Finally, the Grand Chamber should decide whether imposing criminal liability for third party content violates the right to freedom of expression, given the peculiar circumstances in this case. Both the applicant and the commenters were convicted of the same offence a decade ago. EFF and Media Defence asked the Grand Chamber to assess the quality of the decades-old laws—one dating back to 1881—under which the politician was convicted, saying criminal laws should be adapted to meet new circumstances, but these changes must be precise and unambiguous to enable someone to foresee what conduct would violate the law.   

Subjecting social media users to criminal responsibility for third-party content will lead to over-censorship and prior restraint. The Grand Chamber should limit online intermediary liability, and not chill social media users’ right to free expression and access to information online.

You can read our amicus brief here:
https://www.eff.org/document/sanchez-v-france-eff-media-defence-ecthr-brief