European Court of Human Rights judgment in the case of Delfi v. Estonia: online media is liable for offensive user comments
 in the case of Delfi AS v. Estonia (application no.64569/09)...)
On 16 June 2015 the European Court of Human Rights (ECHR) in the case of Delfi AS v. Estonia (application no.64569/09) finds that Delfi - a commercially-run internet news portal - was liable for the offensive comments of its readers. It held that Estonia hadn’t violated freedom of expression provided in Article 10 of the European Convention of Human Rights (Convention).
Principal facts of the case
In 2006 Delfi published an article in its webpage about company that provides a public ferry transport service between islands. The article discussed the company’s decision to change the route its ferries took to certain islands indicating in the heading that the company “destroyed planned ice road”. The decision caused ice to break in ice roads (open public roads over the frozen sea) planned to be made and as a result postponed the opening of these roads - a cheaper and faster connection to the islands compared to the ferry services.
The article attracted many comments of which about twenty contained personal threat and offensive language directed against the company and its owner. Only about six weeks from their publication upon the request of the company Delfi removed the offensive comments.
The owner of the company brought action against Delfi before the Estonian court, which found that Delfi was responsible for the defamatory comments that infringed the owner’s personality rights and rewarded 5,000 kroons (EUR 320) in compensation for non-pecuniary damage. After the appeal brought by Delfi was dismissed by Estonia’s Supreme Court, it lodged the application against Estonia with ECHR alleging the violation of freedom of expression provided in Article 10 of the Convention. The ECHR in the judgment of 10 June 2013 held that there had been no violation of Article 10 of the Convention. Delfi asked to refer the case to the Grand Chamber.
The decision of the European Court of Human Rights
The Grand Chamber in the judgment of 16 June 2015 reaffirmed the previous judgment and held that there was no violation of freedom of expression.
At the outset the Grand Chamber delineated the scope of its inquiry and stated that the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channeled by any input from the forum’s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby.
Further, the Grand Chamber examined whether the interference with Delfi’s freedom of expression could be justified and proportionate.
The Grand Chamber found that it was agreed that interfering with Delfi’s right to freedom of expression was reasonable in the light that it pursued the legitimated aim to protect the reputation of others. Delfi is a professional publisher that runs one of Estonia’s biggest online news portals for economic intentions, it should have known the relevant legislation and case law or asked for legal advice. Thus because of Delfi’s position that it could have evaluated the risks associated with its activities and which it reasonably could have seen beforehand that may happen, the Grand Chamber ruled that interfering with the freedom of expression in Delfi’s case was ”prescribed by law”.
Evaluating whether the restriction on the right of freedom of expression was necessary in a democratic society, it found that that the comments that were posted on the applicant’s news portal were unlawful and both equal to hate speech and inciting violence against the owner of the ferry company. In addition the Grand Chamber put weight on the harsh nature of the comments and found these comments to also violate the personality rights of others.
Regarding the proportionality, the Grand Chamber examined whether the decision of national courts that found Delfi liable for comments posted of its users where compatible with its freedom to impart information as guaranteed by Article 10 of the Convention considering following four factors:
1) The context of the comments. The Grand Chamber emphasized its extreme nature. Moreover it noted that they had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis.
2) Liability of the authors of the comments. The Grand Chamber stated, that Delfi had not made sure that the actual authors may have realistically been held liable for the comments they posted, because Delfi allowed the news portal users to leave comments on it without name registration and thus the measures to identify the authors were uncertain. Delfi had not taken into use any way for identification of the authors of the comments in order to the hate speech victim to bring a claim
3) Measures taken by the applicant company. The Grand Chamber found that the steps taken by Delfi to remove the offensive comments without delay after their publication had been insufficient. Both the automatic word-based filter and the notice-and-take-down systems used by Delfi did not succeed to filter the hate comments and threats to the ferry company’s owner and the comments stayed online for six weeks as a result.
4) Consequences for the applicant company. The Grand Chamber found that 320 EUR compensation for damage had by no means been considered as disproportionate sum to Delfi as one of the largest Internet portals in Estonia.
Instead of a conclusion
The judgment will have far reaching consequences regarding the liability of online media in digital ages and it continues to rise board discussions on how far the freedom of expression and freedom of media can be restricted. A number of media companies which as interveners in the case asked the ECHR to consider the importance of the user-generated content of online media as a platform of the freedom of expression in information society, are now facing new challenges relating on how to introduce sufficient steps to monitor the comments in accordance with the requirements of the judgment.
English speaking lawyer the Gencs Valters Law Firm in Riga.
Practising in fields of litigation law, human rights law and ICT law in Latvia, Lithuania and Estonia.
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