Delfi AS v Estonia

This matter has been ongoing since 2006 when proceedings were begun in the Estonian Courts by a member of the board of a Company which had been the subject of an article written by the Applicant Company, a leading internet news portal that published up to 330 news stories on a daily basis. The article drew 185 comments from members of the public with twenty of them being offensive.

The matter came before the Grand Chamber to decide upon the liability of the Applicant Company in respect of offensive comments made by some of the readers.In the earlier hearings before the Courts in Estonia, they held that the Applicant Company was the provider of the contents of the news stories and not a provider of technical services and should have stopped the offensive comments being posted at the time.

Further the Applicant Company could not rely upon Article 12-15 of the E-Commerce Directory which provided limited liability for Internet Service Providers since, as they had invited and included the comments from readers, they held some control over what was posted.

The matter went before The Chamber in October 2013. The European Court did not try and justify what the Estonian courts had ruled. They considered their role was to ascertain whether the Applicant Company’s rights under Article 10 of the European Convention were in conjunction with the Company not being an Internet Service Provider. They rejected the Applicant Company’s contention that their freedom of expression had been interfered with as it was in the Company’s commercial interests to have the comments about the stories included in the news stories

Ghent University Human Rights Centre supported the referral of the case to the Grand Chamber and organised a letter signed by 69 media and internet companies and other academic and human rights bodies which supported the Applicant Company’s request for a referral to the Grand Chamber. They contended that the judgment handed down by The Chamber would seriously affect freedom of expression and democracy. In February 2014 five Judges under Article 43 of the European Convention on Human Rights referred the matter to The Grand Chamber.

The Grand Chamber found that the Applicant Company was liable for allowing the offensive comments on its website. It agreed with the Estonian Courts that the Applicant Company was a publisher. It was liable for the comments as by making the comments public it demonstrated that it was not merely a technical service provider as it had control over what was published.

Reference was made to Article 10 s.2 of the Convention and the responsibilities of the internet news portals. In some cases the comments posted had been offensive and derogatory inciting hatred and violence which the Grand Chamber considered should make the internet news portals liable, without their Article 10 right being contravened, if they did not remove the offensive comments immediately without awaiting notification from offended parties, the subject of those comments.

The Grand Chamber considered the ruling by the Estonian courts on liability against the Applicant Company to be a fair and justifiable curb on the Company’s freedom of expression. They agreed with the Estonian Courts that the Applicant Company’s liability “was excluded under the Information Society Services Act (Infoühiskonna teenuse seadus), which was based on the Directive on Electronic Commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market).”

In this matter the Applicant Company operated as a news portal in the role of media publisher and any interference with their freedom of expression by virtue of the decision of the Estonian courts, the Grand Chamber emphasised was “prescribed by law” and contained in Article 10 “not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects”
The Grand Chamber noted that the Applicant Company could not be viewed as having entirely ignored its duty to third parties in protecting them from offensive comments.

The word filter they employed to remove comments inciting hatred and violence had failed and, they had not acted quickly enough to remove the offending comments and detect any speech not protected by Article 10 of the Convention. They noted that some comments remained online for six weeks.

The Judges considered a commercial operator was obligated to have effective measures in place to remove offensive comments immediately whereas the measures in this case were insufficient.
The Grand Chamber considered that the compensation the Applicant Company was ordered to pay of 320 euro was not an interference with their freedom of expression and the liability placed on the Applicant Company by the Courts “was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company’s right to freedom of expression”.

The Court “Holds, by fifteen votes to two, that there has been no violation of Article 10 of the Convention”.

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