On June 16, 2015, the Grand Chamber of the European Convention on Human Rights held that the owner of a news portal allowing for users comments can be held liable for defamatory comments therein posted by readers, and this will not be considered as a limitation of the website’s freedom of expression. Delfi AS vs Estonia (Application no. 64569/09).
Delfi is one of the largest internet news portals in Estonia. Readers could comment on each published news. At the time of the facts, comments were uploaded automatically and were not edited by Delfi. Nevertheless, the company would expeditiously remove comments flagged as insulting or defamatory by readers.
Delfi published a story that received several personal and offensive threats directed against the subject of the news. Some weeks later the subject of the story requested the offensive comments to be deleted and damages to be paid. Delfi removed the offending comments the same day, but refused to pay damages. The case reached Estonian Supreme court that awarded damages. Delfi objected that it is neutral intermediary immune from liability under the e-Commerce Directive (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) but the claim was rejected.
The website brought the matter to the European Court of Human Rights and lost the case in a unanimous chamber decision.
Subsequently, it brought the matter before the Grand Chamber. Delfi complained that being held liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided by Article 10 of the European Convention on Human Rights.
The Court did not dispute that the Estonian courts’ decisions against Delfi constituted an interference with the organization’s freedom of expression. But the analysis could not stop here: the Court had to verify whether that interference was justified insofar as it (1) was “prescribed by law”, (2) had one or more legitimate aims, and/or (3) was “necessary in a democratic society” (Article 10.2). The Court found
The Court found that the three elements existed in this case and therefore the interference was justified:
(1) As for thelawfulness, the applicable law provisions and the pertinent case-law
made it clear that a media publisher was liable for any defamatory statements made in its media publication. The fact that in the present case publication of articles and comments on an Internet portal was also found to amount to journalistic activity and the administrator of the portal as an entrepreneur was deemed to be a publisher can be seen, in the Court’s view, as application of the existing tort law to a novel area related to new technologies.
Since Delfi should, as professional publisher, have been familiar with the applicable Estonian legislation and case-law, and it should have assessed the risks related to its activities, the interference in issue by the Estonian government was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention.
(2) As for the legitimate aim, the Court considered whether the restriction on Delfi’s freedom of expression pursued the “legitimate aim of protecting the reputation and rights of others”. The Court had to ascertain whether the Estonian tribunals found the right balance between two opposing values guaranteed by the Convention: on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8.
(3) In order to verify if the restriction was justified by a legitimate aim, the Court had to ascertain if such restriction was “necessary in a democratic society”. The Court found that the finding of liability by the Estonian courts had been
a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal had failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts had not been excessive.
For more information, Francesca Giannoni-Crystal