In a recent decision, the Spanish Supreme Court has ruled that social media users can be liable for not deleting offensive comments other users post on their profile (STS 747/2022).

Background

It all started with a dispute between neighbours over building works. The defendant published a post on his Facebook profile complaining about his neighbour’s attempt to impede such works. The post went viral and received thousands of reactions, including abusive comments from other users.

The neighbours filed a claim before the Spanish courts. They alleged that the original posting by the defendant and the contents of comments from other users constituted unlawful interference with their right to honour and reputation under the Spanish constitution. A local court of first instance dismissed the claim.

A regional court of appeal upheld the appeal and declared that the comments unlawfully interfered with the right to honour. Further, it ruled that the defendant was liable for the comments that other users published on his original post. The court considered that the defendant was fully aware of the abusive comments as he replied, thanked, and even deleted a comment from a user who was trying to defuse tensions.

The court of appeal ordered the defendant to remove the offensive comments from his Facebook page, to partially publish the ruling, and to pay €3,000 to his neighbours in damages.

Appeal to the Supreme Court

The defendant appealed to the Spanish Supreme Court, arguing that his right to freedom of expression prevails over his neighbour’s right to honour.

The defendant also claimed that there is no legal provision which requires him to monitor comments posted by others in the exercise of their freedom of expression.

For instance, the Spanish Information Society Services and e-Commerce Act 34/2002, which was adopted under the e-Commerce Directive 2000, requires online platforms to remove any illegal content or disable access to it as soon as possible once they become aware of its illegal nature. However, no such legal obligation is imposed on the users under the Act 34/2002.

Supreme Court ruling on user liability over unlawful content

The Spanish Supreme Court rejected the allegation that the defendant’s original posting interfered with the neighbour’s right to honour. After weighing the right to honour against the defendant's right to freedom of expression, it concluded that the latter prevails. Under Spanish law, only those value judgements that “injure the dignity of another person by undermining their reputation or offending against their sense of personal worth” are considered unlawful interference with the right to honour (Spanish Law 1/1982 on civil protection of the right to honour, to personal and family intimacy, and to one's own image).

Nevertheless, the Court ruled that the defendant was liable for other users’ abusive comments published under his post. The Facebook feed gives users broad control over their posts. Users can block other accounts, as well as react, hide, report, and delete comments posted by other users.

The Court concluded that the defendant cannot simply disregard what other users comment under his post. In any event, the defendant not only allowed the offensive comments to remain on his public Facebook profile, but also actively chose to thank some users for their interventions and deleted another comment questioning his post.

Accordingly, the defendant was found liable because he had a duty in relation to the offensive comments. By failing to delete them, he breached that duty, becoming liable for the damages caused by omission.

Conclusion

The developing framework to regulate online harms, including the recently adopted Digital Services Act, focuses on the liability of online intermediaries and is silent on users’ obligations. It is therefore very interesting to see the Spanish Supreme Court intervention and, particularly, the fact users can be subject to a duty in respect of comments of other users on their posts.