Table of contents
Summary 2
Background 2
Arguments of the parties 3
The applicant's company 3
The Government 3
The third-party arguments 3
Arguments of the Court 4
Underlying problems 5
Legal questions 5
Technical problems 5
Opinions 5
Personal opinion 5
The selection of the case 5
Reflection on ruling 5
The opinion of public and possible consequences 6
Lessons to be learned 6
Summary
The case was held between the owner of the Estonia Internet news portal Delfi and the Estonian Government. The hearing was taken place in Strasbourg on 9th of July 2014 by the Grand Chamber of the European Court of Human Rights.
Background
Delfi, the applicant company, is one of the largest Estonian Internet news portals that published up to 330 articles per day in Estonian and Russian and also operated in Latvia and Lithuania¬¬. On 24th of January 2006, the applicant company published the article under the heading "SLK Destroyed Planned Ice Road" stating that Saaremaa Shipping Company, a public ferry transport company, made it impossible to use several ice roads. Even though the report itself was considered by the Court to be balanced, contained no offensive language and gave rise to no arguments about unlawful statements in the domestic proceedings [75, 44], it caused a lot of negative reaction from the public.
Delfi news portal allowed commenting, moreover, it openly invited visitors to comment on articles – showing the number of comments on the main page directly next to the title – which attracted more advertisement [89]. Nevertheless, the company had a commenting policy which prohibited comments that contained threats, insults, incite hostility and violence, incite illegal activities, off-topic links, spam or advertisements, obscene expressions and vulgarities and left the right to remove such kind of comments [14]. Moreover, the portal had an automatic system of deletion of comments based on stems of certain vulgar words and it had a notice-and-take-down system in place [155].
The article on the SLK mentioned before drew a lot of attention and, in turn, numerous insulting comments directed against a member of the supervisory board of SLK L. On 9 March 2006 L.’s lawyers requested the applicant company to remove the offensive comments (20 in total) and approximately 32,000 euros (EUR) in compensation for non-pecuniary damage [18]. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company [19], however, Delfi refused to pay for the damages. Later on, several court procedures were held and Delfi was forced to award L. EUR 320 [27].
Afterwards, the owner of Delfi decided to appeal the Supreme Court decision claiming that the freedom of expression according to Article 10 of the European Convention on Human Rights had been violated, as well as the right to store information and enable users to express their opinion [69], by the fact that it had been held liable for the third-party comments posted [3]. Article 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Arguments of the parties
The applicant's company
First of all, the applicant claimed that in nowadays world Internet is the space where everyone is free to express his or her own opinion. By commenting and debating on news articles, publicity draws attention to the current social problems and journalists might start investigations on those issues. The applicant was concerned that removing unlawful comments as soon as the company became aware of illegal statements was sufficient.
As it was stated in the Judgement [68]
“The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments.”
Delfi argued that the comments were reactions on the actions of the Saaremaa Shipping Company, but not on the article itself [75]. Besides that, Delfi claimed that it provided sufficient measures to prevent unlawful comments [76]. They could, of course, hire a huge army of workers who would constantly monitor comments and remove each one that was labelled defamatory or prohibit commenting as such, either way, was not considered to be a good one [72]. The applicant company also emphasized the importance of anonymity in regard to the free speech on the Internet [79]. Lastly, the applicant company mentioned that the domestic courts had clearly misinterpreted the European Union (EU) law [80].
The Government
As a response to the last claim of the applicant company, the Government stated that according to the Court’s case-law it was for the domestic courts to decide on the domestically applicable law and interpret it [81].
Secondly, the Government was concerned that Delfi actively invited users to comment on the news, which in turn drew more attention of advertisers, consequently lead to a higher profit. Moreover, it claimed that the news portal for the same purpose allowed anonymous comments, that tended to be more insulting than the ones by the persons who had registered since they attracted more users [90]. As written in the Judgment [90],
“The Government added that the applicant company's responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal – only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures, taken weeks or even days later to protect a person's honour were no longer sufficient because the offensive comments had already reached the public and done the damage.”
Last but not least, the Government stressed that it was proved impossible to identify the person who had made the comment [91].
Later on, the Government referred to the relevant provisions of the civil law and domestic case-law to the effect that media publishers were liable for their publications along with the authors [124].
The third-party arguments
In the purpose of making the right decision, third-parties were referred to. Those included The Helsinki Foundation for Human Rights, Article 19, Access, EDiMA, CCIA Europe and EuroISPA and Media Legal Defence Initiative. According to the last one, majority of online media outlets allowed reader comments [101], so the users could debate news, moreover, the majority of publications in North America and Europe did not screen or monitor comments before they were posted, instead, they ran a filtering software and blocked users who broke the rules of commenting [104].
Arguments of the Court
Firstly, it should be noted that the court observes that the Supreme Court recognized that “publishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the writer of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs” [112].
It has no reasons to argue with this statement.
Secondly, the Court mentions that the applicant company is a professional Internet news portal company and, moreover, is one of the largest in Estonia [115, 117]. The court observed the main difference between the Government’s and the applicant's opinion. Applicant’s company considered itself to be an intermediary in the regards the third-party comments, while in contrast, the Government saw Delfi as a media publisher as well in regard to comments [125]. The court notices that the domestic court considered applicant company to be a publisher and held liable for unlawful comments of the users based on the Constitution, the Civil Code (General Principles) Act and the Obligations Act. Besides that, the Directive on Electronic Commerce into Estonian law did not apply to the case [128]. “In sum, the Court considers that it was sufficiently established by the Supreme Court that the applicant company’s involvement in making public the comments on its news articles on the Delfi news portal went beyond that of a passive, purely technical service provider” [146].
Furthermore, the Court underlined the importance of free speech in the democratic society.
Overall, the Court considered several facts, which included that the article was balanced, nevertheless the company had an economic interest in posting it and according to the Supreme Court, it had control over the comments. Additionally, the Court agreed that Delfi took measures to filter comments, however, it was still insufficient for detecting all illegal comments.
Finally, the Grand Chamber of the ECtHR ruled that there had been no violation of Article 10 of the Convention.
Underlying problems
Legal questions
The court had to give the answer to three major questions:
1. Is the interference with applicant’s freedom of expression “prescribed by law”?
In the end, the Court ruled that it was within the meaning of the second paragraph of Article 10 of the Convention:
“The Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail.” [129]
2. Whether the interference was necessary in a democratic society?
(The decision was that it is necessary.)
3. Was the restriction in pursuit of the legitimate aim of protecting the reputation and rights of others?
(The Court saw no reason to hold otherwise [130].)
Technical problems
The main technical problem was monitoring and filtering the comments. Even though the applicant media company a system that tracked down the unlawful comments, it was still insufficient. Apparently, the more advanced and elaborated algorithm had to be implemented. However, it could still remain an issue, as insulting comments may be not obvious or have a hidden meaning.
Besides that, it was possible to make anonymous comments. Although this cannot be considered as an IT problem (it can be solved easily), this feature leads to 20 unpleasant comments authors of with cannot be tracked, therefore, they cannot bear the responsibility.
Opinions
Personal opinion
The selection of the case
As soon as I saw the title of the case, I became interested in it. I heard about Delfi before which made me curious about this particular case in the first place. Also, I found interesting the case itself and I wanted to find out how the company could be liable for only publishing comments of other users. Besides that, it was obvious that the dispute took a long time and drew a lot of public attention. The case itself had a big background and already got numerous different opinions. I also assumed that it was challenging for lawyers to defend their clients, so I could not help but wonder which arguments parties would come up with.
Reflection on ruling
The Grand Chamber decision seemed to be unexpected at the first glance, but after careful reading through it, there is no reason left to disagree. The first noticeable doubtful statement of the domestic court is that Delfi is not recognised as an intermediate publisher, thus is not protected under the Directive on Electronic Commerce and the Information Society Services Act . This assertion can be justified as the commerce is related to activities of a merely technical, automatic and passive nature, while the company was clearly benefitting from the unlawful comments, as they drew up the attention from both users and advertisers. However, this statement was not being reconsidered, the Court only assessed if it conforms the European Convention on Human Rights.
The Grand Chamber stated that Delfi is a professional Internet news portal and should have sought for a legal advice. Furthermore, I believe that the compensation of EUR 320 is not large, moreover, the media company did not have to change its business model. Considering all of the above, I agree that there was no excessive interference with the right to freedom of expression of the applicant.
The opinion of public and possible consequences
The case of Delfi vs Estonia drew a lot of attention from the public and started many discussions.
For example, MLDI’s CEO, Peter Noorlande was afraid that the judgement would lead to a chilling effect in the commenting section:
“Comment sections are important: they allow for debate on issues of public interest and have become an integral part of online media. Holding organizations liable for user comments hampers freedom of speech.”
On the other hand, T.J. McIntyre, a lecturer in law and Chairman of Digital Rights Ireland, the lead organization that won an important victory against EU data retention in the Court of Justice of the European Union was concerned that the decision would not lead to any negative consequences:
“Today's decision doesn't have any direct legal effect. It simply finds that Estonia's laws on-site liability aren't incompatible with the ECHR. It doesn't directly require any change in national or EU law. Indirectly, however, it may be influential in the further development of the law in a way wh¬ich undermines freedom of expression. As a decision of the Grand Chamber of the ECHR, it will be given weight by other courts and by legislative bodies.”
The judgment was finished three years ago and now news portals tend to prohibit comments . Most of them move the discussions to the social media.
Lessons to be learned
Obviously, the decision of the Court is not the best-case-scenario. Now, companies have to pay way more attention to the comments they publish. However, this ruling does not affect social network or forums as the provider of the information could be a private person.
Nevertheless, a good practice for larger portals (in this example news) would most likely be to prohibit the anonymous comments and making sure that the author of the comment is considered to be liable for the illegal expression (in case if it is possible). Additionally, a reliable monitoring system has to be implemented to prevent unlawful comments. Last but not least, companies should always consult with lawyers in order to receive a legal advice regarding the content they publish.
On the other hand, the smaller companies may not afford the monitoring software or the lawyer which makes the situation way more difficult for managers. In this case, the best way to avoid conflicts is to prohibit commenting at all and move all the discussion to the social networks.
With implementing any of the options listed above, Delfi could prevent such a dispute, or at least avoid the liability. The Government, in turn, could do nothing to prevent this conflict. However, in my personal opinion, the shipping company SLK could foresee the negative reaction of the public and possibly consider it before delaying the construction of the ice roads, which has been most likely done with the aim of gaining higher profit. In this way, the company could avoid such negative comments and the court case itself.