Does this Grand Chamber ruling significantly affect free speech and the liability of online news portals?
What's the issue?
In November 2013, we reported on the decision by the European Court of Human Rights (EctHR) in a reference from Estonia. The Estonian Supreme Court had held that online news portal Delfi, was liable for racist and threatening user generated content (UCG) posted on its site, despite the fact that the offending comments were taken down once Delfi was put on notice. Delfi appealed to the EctHR arguing that the domestic court's decision breached its right to freedom of expression under Article 10 of the European Convention on Human Rights. The EctHR ruled that the Supreme Court's decision was within Estonia's margin of appreciation and was not a violation of Delfi's Article 10 rights. The decision was considered so controversial that the Grand Chamber (comprising seventeen judges) agreed to review it.
What's the development?
The Grand Chamber has upheld the earlier decision that there was no breach of Delfi's Article 10 rights.
What does this mean for you?
This case has aroused a great deal of interest because of the original decision by the Estonian courts that an online news portal could not be considered an intermediary with the benefit of protection under the hosting exemption in the Electronic Commerce Directive. Also notable was the fact that Delfi was found liable for UGC despite having taken the content down promptly once put on notice. This, some have argued, represents a blow to free speech and places online news portals in the invidious position of having to pre-moderate and monitor UGC.
It is true that the position of online news portals in Estonia has been made more difficult but it is arguable as to whether the Grand Chamber decision will really have a major and lasting impact on liability for UGC. It should be remembered that the EctHR was only asked to consider whether Estonia had breached Delfi's Article 10 rights. The Grand Chamber explicitly stressed the limit of its remit:
"The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention…Thus the Court confines itself to examining whether the Supreme Court's application of the general provisions of the Obligations Act to the applicant's situation was foreseeable for the purposes of Article 10s2 of the Convention."
While the Grand Chamber did examine the Supreme Court's reasoning when reaching a decision as to whether it was "necessary in a democratic society" to interfere with the Article 10 right, it did not rule on liability for UGC. The case may have had wider ramifications had questions around the scope of the hosting exemption been referred to the Court of Justice of the European Union whose role is to interpret EU legislation. The ECtHR has a supervisory role and is not intended to interpret either Member State or EU law. The extent of its ruling was holding that the Supreme Court's reasoning and decision to order Delfi to pay €320 was within Estonia's margin of appreciation and not in breach of Article 10 of the Convention.
Given the extremely low damages awarded, it seems unlikely that this case will open the floodgates in Estonia, let alone elsewhere in Europe and, consequently, is unlikely to result in significant adverse consequences for intermediaries or free speech.