Delfi AS v. Estonia: ECHR's Decision on Liability of Websites for Offensive Online Comments of its Readers

On 16 June 2015 the Grand Chamber of the European Court of Human Rights has delivered the long awaited final judgment in the case of Delfi AS v. Estonia, a legal battle which was launched nine years ago. The Court ruled in favor of Estonia, embracing the idea that websites should be held liable for certain types of anonymous comments posted by users. The Court concluded that there was no violation of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In this blog I will briefly discuss the background of this case on freedom of expression and the liability of user-generated content on websites and I will also quote the opinions of a few experts on the Delfi case.

Background and the Grand Chamber's decision

Delfi is one of the largest news portals in Estonia. Readers may comment on the news story, although Delfi has a policy to limit unlawful content, and operates a filter as well as a notice and take down system. Delfi ran a story concerning ice bridges, accepted as well-balanced, which generated an above average number of responses. Some of these contained offensive material, including threats directed against an individual known as L. Some weeks later L requested that some 20 comments be deleted and damages be paid. Delfi removed the offending comments the same day, but refused to pay damages. The matter then went to a domestic court and eventually L was awarded damages, though of a substantially smaller amount than L originally claimed. Delfi’s claim to be a neutral intermediary and therefore immune from liability under the e-Commerce regime was rejected. The news organisation brought the matter to the European Court of Human Rights and lost the case in a unanimous chamber decision. It then brought the matter before the Grand Chamber.
The question before the Grand Chamber was not whether the freedom of expression of the authors of the comments had been breached but whether holding Delfi liable for comments posted by third parties had been in breach of its freedom to impart information. The Grand Chamber decided that the Estonian courts’ finding of liability against Delfi had been a justified and proportionate restriction on the portal’s freedom of expression, in particular, because:

• the comments in question had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis;
• the steps taken by Delfi to remove the offensive comments without delay after their publication had been insufficient; and the 320 euro fine had by no means been excessive for Delfi.

•  Dirk Voorhoof, Delfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers - Strasbourg Observers:

"The attention is to be drawn on one of the Grand Chamber’s important considerations that the Delfi 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 channelled by any input from the forum’s manager. The Grand Chamber’s finding is neither applicable to 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. The Court indeed emphasises very strongly the liability when it concerns a professionally managed internet news portal, run on a commercial basis. There are severe doubts however if this limitation of the impact of the judgment is a pertinent one, reserving the (traditional) high level of freedom of expression and information only for social media, personal blogs and “hobby” (§ 116). It is indeed hard to imagine how this “damage control” will help. As the two dissenting judges observe: “Freedom of expression cannot be a matter of a hobby”.
The Grand Chamber also makes clear that the impugned comments in the present case mainly constituted hate speech and speech that directly advocated acts of violence. Hence, the establishment of their unlawful nature did not require any linguistic or legal analysis by Delfi, since the remarks were on their face manifestly unlawful. According to the Grand Chamber its judgment is not to be understood as imposing a form of “private censorship”. However, the judgment considers interferences and removal taken on initiative of the providers of online platforms as the necessary way to protecting the rights of others, while there are other ways that can achieve the same goal, but with less overbroad (pre-)monitoring of all user generated content or with less collateral damage for freedom of expression and information, such as taking action against the content providers, and effectively install obligations for providers to help to identify the (anonymous) content providers in case of manifest hate speech or other illegal content. Obliging online platforms to filter or monitor users’ comments in order to prevent any possible liability for illegal content creates a new paradigm for participatory online media."

• Lorna Woods, Delfi v Estonia: Curtailing online freedom of expression? - EU Law Analysis:

"Indeed, the view of the portal as having control over user generated content seems to overlook the difficulties of information management. The concurring opinions go to great length to say that a view which requires the portal only to take down manifestly illegal content of its own initiative is different from a system that requires pre-publication review of user generated content. This may be so, but both effectively require monitoring (or an uncanny ability to predict when hate speech will be posted). Indeed, the dissenting judges say that there is little difference here between this requirement and blanket prior restraint (para 35). Both approaches implicitly reject notice and take down systems, which are used – possibly as a result of the e-Commerce Directive framework – by many sites in Europe. This focus on the content has led to reasoning which almost reverses the approach to freedom of expression: speech must be justified to evade liability. In this it seems to give little regard neither to its own case law about political speech, nor its repeated emphasis on the importance of the media in society."

• Neville Cox, Delfi v. Estonia: Privacy Protection and Chilling Effect - Verfassungsblog:

"Finally, the Court (like the first chamber) attached great significance to the fact that what had happened involved publication on the internet which ‘provides an unprecedented platform for the exercise of freedom of expression’ (para 110). It regularly noted, alongside the benefits provided by the internet, that the capacity for instantaneous and global publication had the potential significantly to undermine the rights of privacy and reputation of persons and it implied, strongly, that its judgement simply would not have application where, for example, the print media was concerned. Put simply, the duties and responsibilities attaching to publishers in this context would be unique (para 113). In other words, the decision of the Estonian Supreme Court that the applicants were required to exercise a greater level of control over anonymously posted comments than had heretofore been the case was not a disproportionate interference with their rights under Article 10 having regard to the potential for harm to the rights ad reputations of others flowing from such publications. There was, of course, a counter argument to this. The ECHR noted (para 48), but ignored the comment at para 27 of the UNHRC Special Rapporteur inter alia on freedom of expression of May 2011 (A/HRC/17/127) that the internet also provided defamed parties with an instantaneous and global right of reply which must play into the question of whether a sanctions imposed on the ‘defamer’ were necessary or proportionate (see also Para 49 of the ECHR judgement). Thus, it would seem that the decision of the ECHR in this case simply continues a trend evident in other judgements whereby it appears to be viewed as necessary to increase the protections afforded to rights of reputation and privacy generally (and possibly to increase the controls available for grossly unacceptably speech) as a bulwark against the enhanced possibilities for the exercise of freedom of expression de facto provided by the internet."