With the sentence of 9 March 2017 in Pihl v. Sweden, the European Court of Human Rights has clarified the limits of the liability of website and blog operators for defamatory users’ comments.

In this case, once national remedies have been exhausted, the citizen appealed before the Court of Strasbourg, complaining that domestic law had violated article 8 of the ECHR because it didn’t fully protect the right to respect for his private life. The claimant asked to condemn the blog operator to restore the damages caused by a defamatory comment written by an anonymous user stating that Pihl is a real hash-junkie.

The Court rejected the application, referring to some of its recent decisions (Delfi v. Estonia, Magyar v. Hungary) specifying that the balancing undertaken by national Courts between the articles 8 and 10 of ECHR, respectively about right to privacy and freedom of speech, can be substitute only for strong and serious reasons. In particular, evaluating this possibility, the Court has to consider the context, measures adopted by the operator to prevent or remove the injurious comments, and the users’ liability for what they write. In this case, according to the Court, the fact that the operator immediately removed both post and injurious comment, in addition to writing a new post containing apologies and an explanation of what happened, is to be considered an appropriate behaviour which excludes liability for participation on defamation.

The sentence of the Court excludes the possibility that website operator is automatically liable for users’ comments, on the condition that, upon notice of the defamatory content of the comment, the same comment is immediately and efficiently removed. It is, however, useful to specify that in this case, the operator was a no-profit organization, and for this reason the ECtHR considered not necessary to provide a preventive mechanism moderating comments. It is partly in contrast with recent sentences that considered the adoption of a procedure of preventive control of the comments’ content as a fundamental element to exclude the blog operator liability.

Also the Italian Court of Cassation dealt with a similar case that had enormous resonance. In particular, a website operator has been condemned to pay a sanction of sixty thousands euros to the current FIGC President Carlo Tavecchio for a defamatory comment written by an anonymous user. Apparently, this decision seems to be in contrast with what the ECtHR affirmed, but actually, it isn’t because that operator, although in knowledge of the defamatory content of the comment, did not immediately remove it. This behaviour, according to the Italian Court, contributed to extend the defamatory effectiveness of the comment.

In conclusion, although the Court of Strasbourg provided some limits to the liability of the website operators, these probably will suffer a chilling effect. In fact, to avoid receiving sanctions, website operators could decide to cancel the possibility of the users to comment articles or posts.