In early 2014, we looked at the controversial decision of the European Court of Human Rights (“ECtHR”) in the case of Delfi AS v Estonia. Delfi, one of Estonia’s largest online news portals, had been found responsible by the Estonian courts for the unlawful comments posted on a news article. Delfi appealed the decision to the ECtHR Chamber but failed in its attempt to argue that its freedom of expression rights had been infringed. The case had been criticised as weakening free speech and freedom of expression rights in the online environment. Recently, the Grand Chamber of the ECtHR heard Delfi’s final appeal. The ECtHR again found that the interference with Delfi’s freedom of expression rights was lawful. In short, Delfi remained responsible for the unlawful comments posted by readers and this responsibility was appropriate under European human rights law.

Case Recap

In 2006, Delfi published an article concerning a shipping company, SLK. The article attracted a number of offensive and threatening comments focusing on an individual, ‘L’, the majority shareholder of SLK. The operation of Delfi’s site was broadly in line with many other major news portals, with readers having the ability to post comments in response to news articles. Some automated filtering of offensive terms took place, with Delfi also operating a ‘notice and take down’ policy.

Despite removing the offending comments following a request by L, the Estonian courts found Delfi to be the publisher of the comments and therefore responsible for their content. The Estonian courts also found that Delfi had failed to take sufficient remedial action. While Delfi attempted to rely on hosting immunities implemented from European law, the local courts decided that the Estonian implementation provided no relief to Delfi. The case was appealed by Delfi to the ECtHR, arguing that the Estonian courts’ decision breached the company’s right to freedom of expression (as protected by Article 10 of the European Convention on Human Rights (“Convention”)). Delfi lost the appeal and entered a final appeal to the Grand Chamber of the ECtHR.

How the Court Decided

The ECtHR again found that the interference with Delfi’s freedom of expression rights was justified. It held that the Estonian law in question achieved a “legitimate aim” and the restriction of Delfi’s rights was necessary and proportionate.

In particular, the ECtHR made the point that Delfi should have known that the article would attract such comments. This was despite the acceptance by the court that the article itself was a balanced one. Delfi was found to have had full control and was the only entity in a position to predict the nature of responses to articles published on the site and Delfi’s exercise of that control was insufficient. The court described the comments as being “manifestly unlawful” and “amounting to hate speech”. It further found that Delfi had taken insufficient measures to prevent or quickly remove comments that did not constitute protected speech.

Going After the ‘Big Fish’

One of the noteworthy points made by the ECtHR was its preference for the injured party in question to pursue Delfi over the individual authors of the comments. The court noted the difficulties injured individuals would encounter under local law when trying to identify and sue the authors rather than the website. The greater financial position of the company compared to the individual author was also a weighty factor.

The ECtHR also stated that the ability of a potential victim of defamatory comments to continuously monitor the internet is more limited than the ability of a large commercial internet news portal to prevent or rapidly remove such comments.

What Does This Decision Mean?

While such a decision of the ECtHR is not directly binding on Irish and European Union courts, those courts must generally interpret applicable law in light of the Convention. Despite this, this case might be confined to its own facts on the basis that Delfi could not avail of the e-commerce immunities under national law, something the Chamber decided was not its task to consider. The ECtHR itself further restricted the application of the decision by specifically distinguishing it from cases like internet discussion forums, bulletin boards and certain social media platforms.

It is noteworthy that the court made a number of references to the harmful nature of the internet through its judgement. The Delfi decision suggests the need for increased vigilance regarding such online comments, over and above the long-accepted notice-and-take-down regime. However, taking this approach would likely pose problems for those relying on the EU law ‘hosting immunity’. Increased review and moderation, such as that suggested here, may defeat any immunity as it arguably puts the company on notice of potentially unlawful content. The case may push certain sites to shut down open comment features or to moderate potential comments much more actively. This was referred to as “collateral censorship” in the opinion of the judges that disagreed with the court’s decision.