The Grand Chamber of the European Court of Human Rights (ECHR) held on June 16, 2015 that the freedom of expression of an Estonian news portal had not been infringed when found liable for defamatory comments posted by third parties on its site. The case is Delfi AS v. Estonia, and has sent ripples online as many fear it signals that the Strasbourg Court may favor protection of reputation over online freedom of speech.

Delfi is one the largest Internet news portals in Estonia and publishes hundreds of news articles every day. At the time of the facts of the case, visitors could leave comments which were automatically uploaded on the site. Delfi did not edit or moderate them, but had a notice-and-take down system which allowed visitors to mark comments as being insulting or hatred-inciting. The system also automatically deleted comments with obscene words.

Delfi published in January 2006 an article about SLK, an Estonian ferry company, claiming that SLK had destroyed public ice roads, used for free in the winter to cross the frozen sea between the Estonian mainland and some islands instead of having to take a ferry. While the article itself was balanced, it triggered 185 comments in two days, 20 of which were offensively derogatory or even threats against L., SLK’s sole shareholder. L.’s attorneys requested Delfi to remove these comments, which it did in March 2006, but refused to pay some 32,000 Euros for damages, as requested by L.

1. filed a civil suit against Delfi, which was dismissed as the County court found the news portal to be sheltered from liability by the Estonian Information Society Services Act, based on the Directive 2003/31/EC (the e-Commerce Directive). This directive exempts from liability, whether it is copyright infringement or defamation, information society service providers acting as a mere information conduit.
2. appealed, won, and the case was remanded to the County Court which ruled this time in favor of L., finding the Information Society Services Act inapplicable and holding Delfi to be the publisher of the comments. The Estonian Supreme Court dismissed Delfi’s appeal, reasoning that Delfi was a content provider, not an information society service provider, because it had “integrated the comments environment into its news portal, inviting visitors to the website to complement the news with their own judgments … and opinions”

Delfi then set up a team of moderators in charge of reviewing comments and deleting inappropriate ones, and applied to the European Court of Human Rights (ECHR), claiming that holding it liable for comments posted by third parties on its web site violated its freedom of expression as protected by article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The Court found unanimously in October 2013 that article 10 had not been violated [I wrote about the judgment here]. The case was then refereed to the Grand Chamber.

Liability Exemption Provided by the e-Commerce Directive

Recital 44 of the e-Commerce Directive states that “[a] service provider can benefit from the exemptions for ‘mere conduit’ … when he is in no way involved with the information transmitted.” Article 12.1 of the Directive explains that a provider is a “mere conduit” if it did not initiate the transmission, did not select its receiver and did “not select or modify the information contained in the transmission.”

Indeed, Article 14 of the e-Commerce Directive gives providers a safe harbor from liability for information stored at the request of a recipient of the service if it did not have actual knowledge of the illegal activity and if it “expeditiously” removed or disabled access to the information. Providers, however, do not have a general obligation to monitor information they transmit or store nor do they have “a general obligation actively to seek facts or circumstances indicating illegal activity” (e-Commerce  Directive Article 15).

The Supreme Court had found Delfi to be a publisher because it had “integrated the comments environment into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions… [and it] has an economic interest in the posting of comments” (§ 13). Also, Delfi “can determine which of the comments added will be published and which will not be published.” Because Delfi “governs the information stored in the comment environment, [it] provides a content service.” The Supreme Court added that “[p]ublishing of news and comments on an Internet portal is also a journalistic activity”(§ 31).

User-Generated Content, Unprotected Speech and Democracy

Delfi argued that user-generated content (UGC) is of high importance as it often raises “serious debates in society and even informed journalists of issues that were not publicly known” (§ 66). The Court acknowledged this, but pointed out that the Internet allows defamatory and hate speech to be disseminated “in a matter of seconds and sometimes remain persistently available online” adding that “[t]hese two conflicting realities lie at the heart of this case” (§ 110).

The Grand Chamber seemed to attach great importance to the fact that some comments were defamatory, as it further stated that “the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (§ 133) and “reiterat[ed] that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to private life” (§ 137). The Grand Chamber noted that most of the comments published about L. “amounted to hate speech or incitements to violence,” even though only 20 comments over the 185 were offensive (§ 17).

These 20 comments are not protected by Article 10 and thus “the freedom of expression of the authors of the comments is not at issue in the present case” (§ 140). However, one can argue that their freedom of expression has indeed been violated, as their comments were deleted by Delfi and the Estonian Courts found their deletion to be necessary. In his concurring opinion, Judge Zupančič even wrote that “it is completely unacceptable that an Internet portal or any kind of mass media should be permitted to publish any kind of anonymous comments” (Zupančič concurring opinion p.45), a rather surprising statement from a human rights judge, as the right to speak anonymously is a beacon of democracy.

No Violation of Article 10

Article 10 §1 provides for a general right to freedom of expression, which can, however, be restricted under Article 10 §2 as prescribed by law and if “necessary in a democratic society” for various reasons, amongst them protection of the reputation of a third party. Delfi argued that requiring it to monitor third-party content was interference with its freedom of expression which was not “prescribed by law” and was not necessary in a democratic society. It argued further that the Supreme Court judgment had a “chilling effect” on freedom of expression (§ 73).

The Grand Chamber found this interference was indeed prescribed by law, as it was “foreseeable that a media publisher running a Internet news portal for an economic purpose could, in principle, be held liable under domestic law for the uploading of clearly unlawful comments” (§ 128).

The Grand Chamber also found this interference to be “necessary in a democratic society,” which implies, under well settled ECHR case law, that there is a “pressing social need,” the existence of which can be assessed by Member States with “a certain margin of appreciation.” The ECHR only reviews if the interference is “proportionate to the legitimate aim pursued” and if the reasons set forth by the Member State for such interference are indeed “relevant and sufficient” (§ 131).

In order to assess whether the Estonian courts had breached Article 10 of the Convention, the Grand Chamber examined the context of the comments, the liability of the author of the comments as an alternative to Delfi’s responsibility, and the measures taken by Delfi to prevent or remove these comments, and the consequences of the domestic proceedings for Delfi.

The Grand Chamber first examined the context of the comments, acknowledging that the article published by Delfi was balanced, but that such an article may nevertheless “provoke fierce discussions on the Internet” (§ 144). The authors of the comments could not modify or delete them after having posted them; only Delfi “had the technical means to do this” and thus its involvement “went beyond that of a passive, purely technical service provider”(§ 146).

The Grand Chamber then examined then if the liability of the authors of the comments could serve “as a sensible alternative to the liability of the Internet news portal.” The Court was “mindful of the interest of Internet users in not disclosing their identity.” However, this right “must be balanced against other rights and interests.” The Grand Chamber cited the famous Court of Justice of the European Union (CJEU) Google Spain and Google “right to be forgotten” case, noting that the ECJ “found that the individual’s fundamental rights, as a rule, overrode the economic interests of the search engine operator and the interests of other Internet users” (§ 147). The Grand Chamber also cited K.U. v. Finland, where the ECHR held it was not sufficient that the victim of an online crime could obtain damages from the service provider, but must also be able to obtain reparation by the author of the crime”(§ 149), and Krone Verlags GmbH & Co. KG v. Austria , where the ECHR found that shifting the risk of the defamed person obtaining redress to the media company was not a disproportionate interference with the media company’s freedom of expression (§ 151).

As for the measures taken by Delfi, the Grand Chamber first noted that it was not clear whether the Supreme Court held that Delfi had to prevent the posting of unlawful comments or if removing them quickly would have been enough not to be found liable. The Grand Chamber decided that the latter interpretation was the correct one, and that this legal requirement was not a disproportionate interference with Delfi’s freedom of expression” (§ 153). In a joint concurring opinion, Judges Raimondi, Karakas, De Gaetano and Kjølbro noted that interpreting the Supreme Court as having held that Delfi had to entirely prevent postings of unlawful comments “would in practice imply that the portal would have to pre-monitor each and every user-generated comment in order to avoid liability or any unlawful comments. This could in practice lead to a disproportionate interference with the news portal’s freedom of expression” (Raimondi concurring opinion § 7). However, Delfi was found to be required to ‘post-monitor’ each of the comments posted on its site, and this can also lead to a disproportionate interference with its freedom of expression!

The systems put down in place by Delfi, the notice and take-and the automatic deletion of some vulgar words, indicate that it had not completely neglected its duties to avoid causing harm to third parties. They had failed, however, to prevent “manifest expressions of hatred and blatant threats to the physical integrity of L.” (§ 153). The Grand Chamber concluded that Member States could “impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay” (§ 159).

Finally, the Grand Chamber found that the fine imposed on Delfi was not disproportionate to the breach, considering it is the largest news portal in Estonia. Also, Delfi did not have to change its business model after having been sued by L.

For all these reasons, the Grand Chamber found that imposing a liability on Delfi for comments posted on its portal was not a disproportionate restriction to its freedom of expression”(§ 162).

The Fuzzy Scope of this Case

The Court established the scope of this case to be about the “duties and responsibilities of Internet news portals, under Article 10 §2… when they provide for economic purposes a platform for user-generated comments on previously published content and some users … engage in clearly unlawful speech” (§ 115), but stated that the case was not about other forums on the Internet such as a 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 as a blog or a hobby (§ 115).

This is an important distinction. However, the Court was not clear enough in its explanation of which online forum is considered a publisher under Delfi. It seems that the Court attached great importance to Delfi benefiting financially from the number of comments posted on its site, including comments which may be defamatory. But a social media platform may also benefit from the numbers of users, whether or not they are actively engaged. For example, a person can visit Facebook or Twitter to read posts, but not post anything herself, but is still considered an as active user because she logged in, and this contributes to the financial value of the site. The same goes for blogs, which count the number of visits and clicks to gauge success, but not necessarily the number of comments. Of course, a social media site which users are not also actively posting and creating content is doomed to fail.

In their dissenting opinion, Judges Sajó and Tsotsoria wrote that requiring “active Internet intermediaries,” which they defined as hosts providing their own content and which open their intermediary services for third parties to comment on that content, to have constructive knowledge on content posted “is an invitation to self-censorship at its worst.” They also noted that “[g]overnments may not always be directly censoring expression, but by putting pressure and imposing liability on those who control the technological infrastructure (ISPs, etc.), they create an environment in which collateral or private-party censorship is the inevitable result.” For Judges Sajó and Tsotsoria, “Internet is more than a uniquely dangerous novelty. It is a sphere of robust public discourse with novel opportunities for enhanced democracy” (Sajó and Tsotsoria dissenting opinion p. 46).

Judges Sajó and Tsotsoria further noted that active intermediaries are now obliged to remove unlawful content “without delay” after publication and find it to be prior restraint. However, prior restraint is censorship before publication. Here, the Grand Chamber favored a system where comments can be freely published, but must be deleted by the site if found to be defamatory or hateful. As such, the Grand Chamber did not promote a notice and take down system, when it is the victim who puts the site on notice, but rather gave intermediaries a general responsibility to expeditiously censor any illegal speech published in their sites. Such a responsibility may give rise to a general corporate censorship over the Web, and significantly chill online speech. The Strasbourg Court took, indeed, an icy and slippery road.

(Image courtesy of Flickr user ThreeIfByBike pursuant to a Creative Commons CC BY-SA 2.0 license.)

by