The European Court of Human Rights (ECtHR) ruled on 10 October 2013 in the case Delfi AS vs. Estonia that an Internet news portal was liable for the offensive comments that were posted by the readers underneath its online articles.
The Court held that the finding of liability by the Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: – the comments were highly offensive; – the portal failed to prevent them from becoming public, profited from their existence, allowed their authors to remain anonymous; and, – the fine imposed by the Estonian courts was not excessive.
Even though the portal had argued that the EU Directive on Electronic Commerce, as transposed into the Estonian law, had made the case exempt from liability, the Court found that it was for national courts to resolve issues of interpretation of domestic law, and therefore did not address the issue under EU law.
The decision was heavily debated by the freedom of speech advocates that criticized the ruling for failing "to understand the role of Internet intermediaries as the gateway to the exercise of free expression."
EDRi-member Article 19 pointed out that the decision is "a deeply concerning precedent for freedom of expression in several respects. It also displays a worrying lack of understanding of the issues surrounding intermediary liability and the way in which the Internet works."
The Court has thus failed to appreciate the purpose of the EU E-Commerce Directive provisions concerning hosting liability and has considered that the news portal should have prevented defamatory and other clearly unlawful comments from being made public. But that is actually contradictory to article 15 of the Directive which prohibits Member States from imposing monitoring obligations on information society services, including actively seeking “facts or circumstances indicating illegal activity.”
At the same time, the Court ignored the relevant international standards developed by the UN Special Rapporteur on Freedom of Expression in this area in his thematic report on the Internet where he clearly recommended that “censorship measures should never be delegated to private entities, and that no one should be held liable for content on the Internet of which they are not the author.”
The decision of the Court Chamber is not final though. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgement. If the referral request is refused, the Chamber judgement will become final on that day.
Press release – Making an Internet news portal liable for the offensive online comments of its readers was justified (10.10.2013)
Full Text – DELFI AS v. ESTONIA (10.10.2013)
European Court strikes serious blow to free speech online (14.10.2013)
European ruling spells trouble for online comment (11.10.2013)