The Grand Chamber of the European Court of Human Rights has upheld its first instance decision in Delfi A.S. v Estonia (16 June 2015). It held that an online news portal operator (Delfi) was responsible for comments posted about an online article by one of its readers (see our legal update on the first instance decision here).
The Grand Chamber’s Decision
The Grand Chamber confirmed that imposing liability on Delfi for the third party comments did not violate its freedom of expression, in violation of Article 10 of the European Convention on Human Rights (the Convention).
The interference with Delfi's right to freedom of expression was a proportionate interference, and met the requisite three stage test, of being "prescribed by law", having one or more legitimate aims, and being "necessary in a democratic society".
The Grand Chamber held:
- The restriction was lawful, as it was foreseeable that a media publisher running an Internet news portal for an economic purpose could be held liable under domestic law for the uploading of clearly unlawful comments, of the type at issue in the present case. The Grand Chamber reiterated that it was not its task to take the place of the domestic courts but instead to assess whether the methods adopted were in conformity with the Convention. Accordingly, it would not review the Estonian Court's decision that the E-commerce Directive 2000/31/EC (and the limitation of liability of ISSPs thereunder) and domestic implementing legislation did not apply to Delfi, as a professional publisher. The Estonian Court had found that the Directive applied to activities of a "merely technical, automatic and passive nature" unlike the objective pursued by Delfi, which was not merely the provision of an intermediary service.
- The restriction of the news portal’s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others.
- The interference with freedom of expression was necessary in a democratic society. The rights guaranteed under article 8 (right to respect for private life and protection of reputation) and article 10 deserve equal respect. The interference was based on relevant and sufficient grounds. The Grand Chamber approved the factors that the First Chamber had taken into account including:
- the comments were posted in reaction to an article published by Delfi on its professionally managed website run on a commercial basis;
- the measures taken by Delfi to remove the defamatory comments and to ensure a realistic prospect of the authors of such comments being held liable were insufficient, and
- the fine imposed on Delfi by the Estonian Courts, namely €300, was a moderate one.
The decision shows the importance of website operators ensuring appropriate measures are in place to prevent and promptly remove any potentially defamatory commentary. In this case, the comments were online for six weeks before being removed by Delfi.
In regard to the implications of this decision, it is noteworthy that the Grand Chamber emphasised (at para. 115) that this case concerned the duties and responsibilities of Internet news portals only, when they provide, for economic purposes, a platform for comments by readers on published content and readers, whether identified or anonymous, engage in unlawful speech which infringes the personality rights of others.
The ruling highlights at para.116: "The case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channelled from the forum's manager; or a social media platform where the platform provider does not offer any comment and where the content provider may be a private person running the website or a blog as a hobby."
Accordingly, this decision appears to be targeted at online news portals which operate on a commercial basis, publishing articles and inviting readers to comment on them. It was also relevant that Delfi was one of the biggest Internet media publications in the country; had a wide readership, and there was a known public concern about the controversial nature of the comments it attracted.