Should websites and social media pages be liable for users' comments?

By Kenneth Muhangi

In the past few years, we have witnessed a colossal growth in the use of social media, mainly thanks to websites like Facebook and Twitter. Almost all Internet users now interrelate with social media in some way.

Some of us contribute new content while others prefer to simply browse it and occasionally post comments, reviews or bookmark their favorite content for later. Whatever the case, Social Media has had a huge impact on the way we use the Internet to socialize, educate ourselves, do business, and so much more.

Although such platforms are credited for disseminating information and promoting debate, they can also be a source of negative speculation and inadvertent promotion of subversive content. Facebook pages like the now infamous TVO and Timothy Kalyegira’s Kampala Express have been known for thought provoking posts which have Inevitably elicited comments from users that are inappropriate and defamatory.

Social media accounts work in such a way that the owner of a website/account or page has the unfettered discretion to decide what other users will see (or won’t see) on their platform. It is thus left to the page/account owner, to allow or disallow defamatory or seditious content to remain on their page.

This was until recently when in a surprise decision, the European Court of Human Rights (ECHR) in Strasbourg ruled that an Estonian news site (Delf) icould be held responsible for anonymous and allegedly defamatory comments from its readers.

Prior to the decision, intermediaries were guaranteed protection from liability arising from defamatory content as long as the said intermediary implemented a notice-and-takedown mechanism on third-party comments. The decision has thus been seen by many as a dramatic shift away from the free expression and privacy protections that created the internet.

The ECHR cited "the 'extreme' nature of the comments which the court considered to amount to hate speech, the fact that they were published on a professionally-run and commercial news website," as well as the "insufficient measures taken by Delfi to weed out the comments in question and the low likelihood of a prosecution of the users who posted the comments," and the moderate sanction imposed on Delfi.

Although the decision doesn't have any direct legal effect, it simply finds that Estonia's laws on site liability aren't incompatible with the ECHR. It doesn't directly require any change in national or EU law. Indirectly, however, it may be influential in further development of the law in a way which undermines freedom of expression. As a decision of the Grand Chamber of the ECHR it will be given weight by other courts and by legislative bodies.

It will be interesting to see whether such a decision would apply in the Ugandan jurisdiction. The idea that intermediaries would be liable for "manifestly unlawful" content, could possibly improve the way we interact with social media. Users might think twice before sharing defamatory content.

Copyright owners would undoubtedly embrace this decision because it would ensure websites/ social media pages monitor and filter online content which in turn would reduce copyright infringement. This decision is likely to have important albeit subtle consequences on not just internet usage in the European Union, but also freedom of speech and privacy, across the modern world.

Although it remains to be seen whether such decisions will have any impact on the legal jurisprudence in Uganda, it is important to have a sort of check mechanism for misuse of communication platforms.

The writer is a lawyer