Comparative Study Of Best European Practices Of Online Content Regulation Law and policy of online content regulation, in particular defamation online, in the light of Albanian legislative proposals Kristina Irion Paolo Cavaliere Darian Pavli COMparaTIVE STUDY OF BEST EUROPEAN pracTICES OF ONLINE coNTENT REGUlaTION Law and policy of online content regulation, in particular defamation online, in the light of Albanian legislative proposals AUTHORS KRISTINA IRION | Paolo CAVALIERE | DARIAN PAVLI Authors Dr Kristina Irion Institute for Information Law at the University of Amsterdam (NL) Dr Paolo Cavaliere Edinburgh Law School, University of Edinburgh (UK) Darian Pavli Adviser to Special Parliamentary Committee on Justice Reform, Open Society Foundation for Albania/ Parliament of Albania Disclaimer The opinions expressed in this work reflect the authors’ own views and not of their affiliations nor of the Council of Europe. Citation Irion, K., Cavaliere, P., and Pavli, D. 2015. Comparative study of best European practices of online content regulation. Law and policy of online content regulation, in particular defamation online, in the light of Al- banian legislative proposals. Study commissioned by the Council of Europe, Amsterdam/ Edinburgh/ Tirana, August 2015. © Council of Europe 2015 Printed by the Council of Europe Executive Summary With the advent of the Internet a new public sphere has come into being that has changed modes of creation and consumption of media content where new actors offer online services and individual users can receive and impart information regardless of frontiers. New media and user-generated content greatly enhance the diversity and plurality of online content and allow an unprecedented parallelism of professional and journalistic content and individual speech empowering individual citizens and ordinary users. PART I - European best practices of online content regulation European best practices of online content regulation rest on the shared understanding of the Council of Europe and the European Union institutions to protect the freedom of expression online of all ac- tors. First and foremost, communications via the Internet should not be subject to any stricter content rules than other spheres of expression, thus reaffirming the overarching principle that state interven- tions into the right to freedom of expression and media freedoms in particular must meet the require- ments of strict necessity, minimum intervention, and the protection of from unduly interference. In recognition of the different roles and activities of actors in the new media environment the Council of Europe promotes a graduated and differentiated approach in state legislation that encompasses a new broad notion of the media. This approach requires that “each actor whose services are iden- tified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection” in addition to individuals’ right to freely seek and impart information regardless of frontiers. The European Union policy and legislation takes a similar direction providing for tailored liability exceptions for certain online intermediaries. State actions that aim to protect individuals’ personality rights, their reputation and private life, should correspond with these principles and the case-law of the European Court of Human Rights which to- gether outline a coherent and comprehensive frameworks for the regulation of online content at the national level. The respect of individuals’ right to reputation and private life can be a legitimate limita- tion to the freedom of expression, however, measures should be calibrated according to the roles and activities of the actors in the provision of content and the interference must be balanced taking into account the type of speech, the role of the actors involved, the political relevance and public interest, among others. European best practice thus forestall any one-size-fits-all measures against defamatory online content 5 and need to be flexible so as to take into account the particular circumstances of the expression and personal characteristics of the parties concerned. Under a graduated and differentiated approach, internet intermediaries’ responsibility for hosting online content of third parties has to be determined according to the specific nature of the service they offer. The Council of Europe standard-setting doc- uments and EU legislation provide for a limitation of liability and exclude a specific duty to monitor the information they receive from users on part of hosting providers which in their role and function remain passive service providers. The European Court of Human Rights Grand Chamber judgement in Delfi v Estonia concerns a case where the defendant played an active role in facilitating the posting of unlawful third-party com- ments and was thus treated like a “professional” publisher with all responsibilities for the content on its website. This judgement, however, does not overturn the principle that “passive” online interme- diaries that provide for the hosting services would not be liable for third party content. Despite the differences of jurisprudence at the national level and with the notable exception of Turkey, European countries’ legislation does not establish a general liability regime for providers of hosting services. PART II - Albania and online content regulation Against the background of European best practices in online content regulation, the study consid- ered in particular a pending legislative proposal in Albania which seeks to introduce “liability for online publication of comments that infringe upon a person’s honour, personality or reputation” on providers of “electronic portals”. The study’s assessment of the proposal concludes that it conflicts with the graduated and differentiated approach promulgated by the relevant CoE standard-setting instruments, vastly exceeds the ECtHR interpretation in the Delfi judgement and would clash with the EU aquis, particularly with Art. 14 and 15(a) of the e-Commerce Directive. In light of the above considerations, the necessity of a legislative intervention in Albania at this time, along the lines of the Bregu proposal, appears less than compelling. It may be more advisable, as in the Estonian Delfi case which was based on the general civil law defamation rules, to allow the courts to develop more nuanced rules in this field, under the guidance of the ECtHR. With the exception of England and Wales, which undertook in 2013 long-planned, comprehensive reforms of their def- amation laws, no other EU member state has adopted specific laws for online defamation. This has allowed their court systems to gradually develop the case law, taking account of fast changes in tech- nology, information ecosystems and societal attitudes. If enacted this legislation would retrograde the advancements made with the 2012 reforms to the Albanian civil and criminal defamation laws, introduce an unorganic and unbalanced measure direct- ed against all content and hosting providers that is excessively restraining the freedom of expression online. In particular, the study identifies the following shortcomings: 1. The definition of “electronic portal” to overly broad, thus capturing “passive” intermediaries con- trary to European best practices and the EU aquis; the definition does also not allow for taking 6 COMPARATIVE STUDY OF BEST EUROPEAN PRACTICES OF ONLINE CONTENT REGULATION into account the defining characteristics of the service but automatically places the obligations of “active” intermediaries on all providers; 2. To the extent that “passive” intermediaries would be regulated the proposal contradicts with Art. 17 of the Albanian ECA which provides for a liability exception for hosting services analogue to Art. 14 of the EU e-Commerce Directive; 3. The obligation on portal administrators to prevent the publication of any offending third-party content amounts to a duty to monitor information contrary to the EU aquis; 4. The obligation would appear to apply horizontally to all providers of “electronic portals” irrespec- tive whether they are established in Albania or abroad but the proposal does not include issues of jurisdiction or consider practicalities of extraterritorial enforcement. 5. This in turn can amount to a violation of Art. 3 (2) of the e-Commerce Directive because it would alter the requirements for providers established in another member state within the coordinated field of activities; 6. The general obligations for the content and the take-down procedure do not allow for a balanc- ing exercise taking into account the type of speech, the role of the actors involved, the political relevance and public interest, among others, pursuant to the established case-law of the ECtHR; 7. The legislative proposal lacks procedural safeguards, in particular that courts should primarily as- sess whether online content is infringing third party’s reputation, or at least which requirements the notice has to comply with and other rights and means to assess and protest the notice; and In light of the above considerations, the study recommends the Albanian legislator not to adopt this legislative proposal. It should be recalled that the Estonian Delfi case was based on the general civil law defamation rules and not on dedicated piece of legislation placing a general obligation on pro- viders of hosting services for all published content, irrespective whether this is