Member Article

The European Court of Human Rights (the ECHR), in Delfi AS v Estonia, has upheld unanimously a finding of liability against an Internet news portal regarding offensive comments that were posted online by one of its readers. The ECHR held that making Delfi AS liable for the comments was a justified and proportionate interference with its right to freedom of expression and that there was no violation of Article 10 (freedom of expression) of the European Convention on Human Rights (the Convention).

The Facts

Delfi AS, one of Estonia's largest internet news sites, published an article relating to a ferry company and its decision to change some of its routes to certain islands. This change subsequently damaged the ice at potential locations of ice roads, considered to be a cheaper and faster connection to the islands compared to the company's ferry services. This led to an outcry of abusive and potentially defamatory online comments about the owner of the ferry company underneath the article.

The owner of the ferry company complained in writing to Delfi AS about the comments, but chose not to avail of the website's automated complaint flagging system. Once Delfi AS received the written complaint they removed the defamatory comments, however, they had already been online for six weeks. The owner subsequently sued Delfi AS, with the Estonian lower courts' ruling that the comments were in fact defamatory and that Delfi AS was responsible for them.

The Supreme Court approved the lower courts' interpretation of the domestic law, finding that Delfi AS's activity was not of a merely technical, passive and neutral nature, and that it exercised control over the publication of the comments.  Accordingly Delfi AS did not fall within the scope of the Directive on Electronic Commerce (EU Directive 2000/31/EC) (the Directive) and the domestic implementing legislation.

Delfi AS subsequently complained to the ECHR, arguing that it was exempt from liability for the defamatory comments of its readers under the Directive.  It claimed that there was no obligation under the Directive, or national law, for it to monitor hosted material, posted by third parties.  Delfi AS asserted that such an overly burdensome obligation was contrary to freedom of expression and that it had acted diligently and implemented various technical and manual procedures to reduce the number of illegal comments from the comments area of its portal.

The Law

The Directive limits the liability of information society service providers (ISSPs), including internet service providers (ISPs), where they act as mere conduits (Article 12), caches (Article 13) or hosts of information (Article 14).  Pursuant to Article 15(1) of the Directive, member states must not impose a general obligation on ISPs when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store.

The Decision

The ECHR held that the domestic courts' finding that Delfi AS was liable for the defamatory comments posted by the readers on its Internet news portal was a justified and proportionate restriction on its right to freedom of expression.  Accordingly, there had been no violation of Article 10 of the Convention.

In regard to whether Delfi AS's liability was limited under the Directive and the domestic implementing legislation, the ECHR noted it was for the domestic courts to resolve issues of interpretation of domestic legislation, and it would not interfere with their ruling that Delfi AS did not fall within the scope of that legislation.  The role of the ECHR was confined to ascertaining whether the effects of such interpretation were compatible with the Convention.

The ECHR held:

As a professional publisher, and one of the largest news portals in Estonia, Delfi AS should have realised that the article might cause negative reactions against the ferry company.  Delfi AS was expected to exercise a degree of caution in the circumstances of the case to avoid infringement of other persons' reputations.

The measures which Delfi AS had in place to deal with potential defamatory material published on their website, including an automatic word-based filtering system and notice-and-take-down system, were insufficient.  

It would have been very difficult to establish the identity of the actual authors of the comments, for the purposes of bringing a civil claim against them.

The fine imposed by the Estonian Courts on Delfi AS, of the equivalent of €32,000 in non-pecuniary damages, was a moderate one.

Comment

While this ruling is not yet considered precedent, as it may be appealed under Article 44.2 of the Convention, it serves as a warning to website operators to exercise caution and review their website policies, to ensure all appropriate measures are in place in order to prevent, and promptly remove, potentially defamatory material or commentary.

For more information please contact Davinia Brennan at [email protected] or Alison Obernik at [email protected].