Full case report
Delfi AS v Estonia
Reference Application No.64569/09
Court European Court of Human Rights (First Section)
Judge Isabelle Berro-Lefèvre P, Steiner, Hajiyev, Trajkovska, Laffranque, Turković & Dedov JJ
Date of Judgment 10 Oct 2013
Defamation – human rights – user-generated content – online publishers – user comments – freedom of expression – right to reputation
In January 2006, the applicant company, a leading Estonian news portal, published an article discussing the implications of a shipping company’s decision to move its ferries from one route to another and in doing so breaking the ice at potential locations of ice roads. In the space of two days, the article attracted 185 comments. About twenty of them contained personal threats and offensive language against L, a member of the shipping company’s supervisory board. Upon receipt of L’s complaint, the comments were taken down without delay. However, L pursued the applicant company for damages in relation to the intervening period of six weeks before the comments were removed.
In June 2009, the Estonian Supreme Court upheld the lower court’s finding that the applicant company was civilly liable for the defamatory comments and awarded L the equivalent of EUR 320 in damages. It rejected the applicant company’s contention that it was exempt from liability under the EU E-Commerce Directive (Directive 2000/31/EC) and the domestic legislation which implemented that Directive on the ground that it had had neither knowledge of nor control over the information being stored. By contrast, it decided that the applicant company exercised too great a degree of control over comments on its website to avail itself of the previsions as transported into Estonian law.
At the material time, the applicant company had two general mechanisms in operation for dealing with comments. Firstly, it had an automatic system of deletion of comments based on stems of certain vulgar words. Secondly, it had a notice-and-take-down system in place according to which anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose. It also pro-actively moderated comments on controversial articles on an occasional basis.
There being no dispute between the parties that the domestic courts’ decisions in respect of the applicant company constituted an interference with its freedom of expression as guaranteed under Article 10 of the Convention, was the interference justified under Article 10 § 2 as being:
(1) “Prescribed by law”?
(2) “In pursuit of a legitimate aim”? and
(3) “Necessary in a democratic society”?
By unanimous decision, there had been no violation of Article 10.
(1) The interference in issue was “prescribed by law”
A norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct. He must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
The domestic legislation in question, along with the pertinent case-law, made it sufficiently clear that a media publisher was liable for any defamatory statements made in its media publication. The fact that in the present case: (a) publication of articles and comments on an Internet portal was also found to amount to journalistic activity and (b) the administrator of the portal, as an entrepreneur, was deemed to be a publisher could be seen – in the Court’s view – as application of the existing tort law to a novel area related to new technologies. As a professional publisher, the applicant company must at least have been familiar with the legislation and case-law, and could also have sought legal advice.
As regards the applicant company’s argument that it was exempt from liability under the EU E-Commerce Directive and the implementing legislation, the Court noted that the domestic court had found that the applicant company’s activities did not fall within the scope of that legislation. The Court reiterated that its task was not to take the place of the domestic courts in interpreting their legislation. Instead, its role was confined to ascertaining whether the effect of their interpretation was compatible with the Convention.
(2) The interference in issue was “in pursuit of a legitimate aim”
The restriction on the applicant company pursued the legitimate aim of protecting the reputation and rights of others, notwithstanding the fact that the actual authors of the comments were also liable in principle.
(3) The interference was “necessary in a democratic society”
The domestic court’s imposition of liability was a justified and proportionate interference with the applicant’s right to freedom of expression. Whilst the applicant could not be said to have wholly neglected its duty to avoid causing harm to the reputations of third parties, the domestic court had been entitled to take the view that its measures (filtering and notice-and-take-down) did not ensure sufficient protection for the rights of others.
Noting at the outset that there was no dispute that the comments posted were of a defamatory nature, the Court analysed four factors:
(a) The content of the comments:
Notwithstanding that the article itself was a balanced one, the applicant company could have realized that it might cause negative reactions against the shipping company and its managers. There was a higher-than-average risk that negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech. In such circumstances, the applicant company was expected to exercise a degree of caution in order to avoid liability.
(b) The measures applied by the applicant company to prevent or remove defamatory comments:
With regard to the automatic word-based filter, it was relatively easy to circumvent and had failed to prevent a number of insults or threats. It was thus, as such, insufficient for preventing harm being caused to third persons.
The Court noted the notice-and-take-down system was easy to use and that it had been the applicant’s choice to make his claim in writing instead. Nevertheless, by that time, the comments had already been accessible to the public for six weeks.
The Court also considered pertinent the domestic courts’ argument that the publication of the news articles and making public the readers’ comments on these articles was part of the applicant company’s professional activity. It therefore had an interest in the number of readers as well as comments, on which its advertising revenue depended.
The applicant company was further in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public. The fact that the actual writers of comments could not modify or delete their comments once posted on the Delfi news portal meant the applicant company exercised a substantial degree of control over the comments published.
(c) The liability of the actual authors of the comments as an alternative to the applicant company’s liability
Although L could have brought a claim against the actual authors of the comments, more weight was given to the Government’s counter-argument that for the purposes of bring a civil claim, it was very difficult for an individual to establish the identity of the persons to be sued. It would be disproportionate to put the onus of identification of the authors of defamatory comments on the injured person. Further, by choosing to allow comments by non-registered users, the applicant company had assumed a certain responsibility for these comments.
The Court was mindful that the ease of dissemination of information on the Internet and the substantial amount of information there meant that it was a difficult task to detect defamatory statements and remove them. However, the task of doing so would be even more onerous for a potentially injured person, who would be less likely to possess resources for continual monitoring of the Internet.
(d) The consequences of the domestic proceedings for the applicant company:
Taking into account the applicant company’s size and status as the operator of one of the largest Internet news portals in Estonia, the obligation imposed upon it to pay the equivalent of EUR 320 in non-pecuniary damages could not be considered disproportionate to the breach established by the domestic courts.
The leeway left to the applicant company, which had not been directed by the domestic court as to how it should ensure the protection of third parties’ rights, was another important factor reducing the severity of the interference.
NOTE: this case has now been referred to the Grand Chamber, pursuant to Article 43 of the ECHR.
This decision will be of significance to website publishers, in particular news and other media organisations, seeking to limit their liability for third party comments. Of particular importance is the Court’s refusal to interfere with the Estonian courts’ finding that the applicant company did not benefit from the exemption from liability under Article 14 of the Directive. That interpretation is difficult to reconcile with certain decisions under English law (see eg. Karim v Newsquest Media Group  EWHC 3205 (QB).
Also of interest is the note of caution sounded by the ECtHR in relation to the balancing of the right of Internet users to remain anonymous and the right of victims to obtain redress for damage to their reputation. In the Court’s view, given the potential for widespread and permanent damage caused by Internet publication, and given the difficulty in establishing the identity of posters of defamatory comments, it was not desirable as a matter of public policy to expect third parties to assume the burden of continual monitoring of the Internet, or the risk of having to pursue the authors of defamatory comments rather than secondary publishers in respect of such publication. Parliament in this country has gone down a different route with the somewhat convoluted procedure introduced by s.5 of the Defamation Act 2013 and Regulations made under that sections – having as its very purpose the increased resolution of disputes between the complainant and the poster. It may now be open to question whether the absolute immunity accorded to website operators who bring themselves within the new regulations can be guaranteed to withstand scrutiny by the ECtHR if a case comes before the Court disclosing a particularly serious invasion of Article 8 rights in the reputational sense.
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