European Court of Human Rights examines the entitlement to freedom of speech

Delfi AS v Estonia [2013] ECHR, Application No. 64569/09 (10 October 2013)

Summary

The European Court of Human Rights has held that the imposition of responsibility on a news portal company for news article comments written by non-registered users is a justified and proportionate restriction on its right to freedom of expression.

Facts

The applicant company, Delfi AS, owned Delfi, which published news articles on one of the largest Estonian internet news portals. The portal allowed readers to comment on articles and other readers’ comments, which were uploaded automatically.

Delfi had a system of 'notify-and-take-down' where readers could mark comments that insult, mock or incite hatred on the Internet. There was an automatic system that removed comments that included certain phrases or obscene words. Victims of defamatory comments could also notify Delfi who would then remove the offending comment immediately.

Notwithstanding these protective steps, the applicant stated on its website that it would not remove or edit reader comments and that readers needed to be aware that the Estonian courts had previously taken action against persons for the content of their comments.

On 24 January 2006 the applicant published an article titled: 'SLK Destroyed Planned Ice Roads'. SLK was the name of a business that provided a public ferry transport service between the mainland and some islands. The article attracted 185 comments, 20 of which contained personal threats and offensive language directed against L, SLK's sole or majority shareholder at the time.

On 9 March 2006 L's lawyers requested the removal of the comments and non-pecuniary compensation of 500,000 kroons (32,000 euros). On 23 March 2006 the applicant responded and informed L that the comments had been removed under the 'notify-and-take-down' system, but refused the claim in damages.

L initiated a civil suit against Delfi in the Estonian domestic Courts. This matter ultimately went to the Supreme Court of Estonia on 10 June 2009, which upheld a finding that Delfi was responsible as a publisher for the comments that violated L’s “personality rights”, and that freedom of speech did not extend to protect Delfi in this case. The Supreme Court emphasised that Delfi was a provider of content services that had an economic interest in the publishing of comments, rather than merely a ‘host’ service provider that had no knowledge or control over the comments. 

The applicant brought an action against the Republic of Estonia under Article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms alleging that in being held liable by the domestic courts for readers’ comments, its right to freedom of expression under Article 10 of the Convention had been violated.

Decision

Arguments

Article 10(1) of the Convention guarantees the right to freedom of expression and the freedom to impart information.  It is balanced by Article 10(2) which relevantly provides that the rights in Article 10(1) may be subject to restrictions as are prescribed by law and as are necessary in a democratic society.

Delfi based its allegation of a violation of Article 10 on the following:

• the domestic courts’ interference with its freedom of expression was not "prescribed by law" because the courts’ interpretation of domestic legislation went further than the negative obligation not to publish defamatory comments, and in any case its liability was limited by an EU Directive on Electronic Commerce;
• holding Delfi liable pursued no legitimate aim because the authors of the comments were liable for the possible infringement of L's rights;
• the restriction imposed on Delfi’s freedom of expression was not necessary in a democratic society, because it had not provoked or triggered the comments, and there was a sufficient system to protect personal rights in place;
• the burden of monitoring hosted material was contrary to freedom of expression and information;
• Delfi had only played a passive role in hosting the comments and removing offensive comments once notified, and had acted as a diligent economic operator. Its freedom to impart information had thus been disproportionately interfered with.

The Government submitted that:

• the obligation to avoid causing harm had a clear basis in law, particularly in relation to liability of a media publication for what it published;
• the restriction had a legitimate aim in relation to Delfi as Delfi exercised partial control in the publication of comments;
• the restriction was necessary in a democratic society as Delfi had not removed the vulgar, insulting and degrading value judgments contained in the comments of its own initiative, and must have been aware they were unlawful;
• placing the obligation on third parties (other readers) to monitor comments did not ensure sufficient protection of the rights of third parties, as the information can spread quickly over the internet, and the damage would have already been done;
• in civil defamation cases, it was suitable and proportionate to place greater liability for defamation on a portal owner who provided content services because it was difficult to identify anonymous authors of comments;
• Delfi was not a hosting service provider merely offering data storage (who may avoid liability) when it published readers’ comments, as only Delfi, not readers, could change or delete comments after they had been posted; and
• Delfi was a profit-orientated company dependent on advertising revenue, which had invited visitors to its portal to comment on its articles without identifying authors

Court’s reasons

It was not in dispute that the domestic courts’ decisions constituted an interference with Delfi’s right to freedom of expression.

The substance of the Court’s decision was devoted to considering whether, in accordance with Article 10(2), that interference was justified as it was "prescribed by law", was in pursuit of a legitimate aim and was "necessary in a democratic society".

The Court found that the interference with the applicant’s freedom of expression was prescribed by law. The Court noted that Estonian law made it clear that a media publisher was liable for any defamatory statements made in its media publication, and that the present case was an application of existing tort law to new technologies.

The Court also considered that the interference with Delfi’s freedom of expression pursued the legitimate aim of protecting the reputation and rights of others.

The question of whether, in the pursuit of this aim, freedom of expression was excessively restricted was considered in relation to whether it was “necessary in a democratic society”.  The Court made comments about the essential function of the press, who were nevertheless required not to overstep certain boundaries. The Court also noted that the limits of permissible criticism in the context of journalistic freedom are narrower in relation to a private citizen than in relation to politicians or governments.

The “need” for interference in this case was addressed as a question of whether there was a fair balance between the protecting the right to respect private life under Article 8 of the Convention and freedom of expression under Article 10, and the Court applied established criteria relevant to this balancing exercise.

Ultimately, the Court held that the domestic courts’ finding that Delfi was liable for readers’ defamatory comments was a justified and proportionate restriction on the applicant's right to freedom of expression.  In reaching this conclusion, the Court considered a number of factors to be of particular importance:

• the insulting and threatening nature of the comments, and the higher-than-average risk of comments going beyond acceptable criticism, requiring the exercise of a higher degree of caution;
• the fact that the comments were posted in reaction to an article published by the applicant company in its professionally-managed news portal run on a commercial basis, and the importance of comments to Delfi’s commercial activities;
• the fact that Delfi exercised a substantial degree of control over the comments published on its portal;
• the insufficiency of the measures taken by the applicant company to avoid damage being caused to other parties’ reputations and to ensure a realistic possibility that the authors would be held liable (which would have helped protect rights under Article 8); and
• the moderate sanction imposed on Delfi (320 Euros).

The Court also considered the leeway left to the company in respect of how it should ensure the protection of third parties’ rights to be an important factor reducing the severity of the interference with the freedom of expression.

Editor’s comment

The significance of this decision is that an online news portal could not rely on protection of the right to freedom of expression to prevent it from being liable for comments authored by other people and posted on its website, despite it having a multi-layered filter and comment removal system.

A key factor in reaching this conclusion was the distinction made by the Court between mere ‘host’ of information and a publisher that had an economic incentive to encourage comments.

The balancing exercise undertaken by the Court between the right to freedom of expression and the protection of the private lives of others meant that the scope of the protection of freedom of speech afforded to a news portal may ultimately be quite fact specific, and may depend on the extent to which third parties’ rights were otherwise protected.

Though the Court was clear in noting that the domestic courts had not prescribed particular measures that should be implemented, this decision indicates that it is more likely that a news portal will be required to engage in active comment monitoring where it has significant control over those comments posted.

This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-126635

Nik Partsanis is a Vacation Clerk, and Rachel Nicholson is a partner, at Allens Linklaters.