On 16 June 2015 the European Court of Human Rights (ECtHR) delivered a judgement in Delfi AS v. Estonia. By fifteen votes to two, the Grand Chamber of the ECtHR ruled that there was no violation of Article 10 by the domestic courts in deciding that the Estonian news portal Delfi had not taken sufficient measures to remove unlawful comments under a news story. Pieter-Jan Ombelet and Aleksandra Kuczerawy of the KU Leuven Interdisciplinary Centre for Law and ICT (ICRI-CIR) provide a short summary of the case and point out the key legal issues discussed by the Grand Chamber.

Facts and Background

In 2006, Delfi’s online news portal published an article regarding a change in ferry routes delaying the opening of an ice road. The news story was followed by comments, some of which were considered abusive and defamatory. The Estonian Supreme Court decided that Delfi should be considered a provider of content services, rather than a provider of technical services. The Supreme Court concluded that Delfi should delete defamatory comments without delay after publication and on its own initiative.

Delfi consequently appealed to the ECtHR, complaining that holding it liable for the comments posted by the portal’s readers infringed its freedom of expression as provided by article 10 ECHR. In October 2013 the First Chamber of the ECtHR ruled that there was no violation of art. 10 ECHR.  Delfi asked for a referral to the Grand Chamber, claiming wrongful qualification as a publisher and arguing that the Estonian Supreme Court’s judgement had had a “chilling effect” on freedom of expression.

The decision of the First Chamber was heavily criticised for creating a threat to freedom of expression. According to some authors, the First Chamber’s ruling encourages private censorship by Internet service providers and publishers of online news media. The NGO Article 19 concluded that the Delfi judgement displayed “a profound failure to understand the EU legal framework regulating intermediary liability”. Following the debate, 69 media organisations, internet companies, human rights groups and academic institutions across Europe sent a joint letter to the ECtHR’s president in January 2014 to support Delfi’s appeal to the Grand Chamber of the ECtHR.  In the letter, they emphasised the importance of maintaining no general obligation to monitor for intermediaries, embodied in Article 15 of the E-Commerce Directive. The rule is considered a guarantee for freedom of expression as it prevents overbroad monitoring and filtering of user content and, as a result, minimises private censorship.

The judgement of the Grand Chamber has largely confirmed the Chamber decision of 10 October 2013 in stating that there is no violation of Article 10 ECHR.

The “three step test”

The Grand Chamber assessed whether the restriction of the freedom of expression in casu was acceptable according to the three step test of article 10.2 ECHR. The Grand Chamber stated that the interference with Delfi’s freedom of expression was ‘prescribed by law’ (paragraph 129). Estonian national legislation (the Constitution, Civil Code and Obligations Act) made it foreseeable that a media publisher could be held liable for clearly unlawful comments on its portal (paragraph 128). The company was in a position to assess the risks and foresee the consequences of its activities (paragraph 129). Delfi could not rely on (the national implementation of) the E-Commerce Directive and its liability exemptions for Internet intermediaries (articles 12-15 E-Commerce Directive), considering their economic interest in the publication. Furthermore, the restriction of Delfi’s freedom of expression clearly served the legitimate aim of protecting the reputation and rights of others (paragraph 130).

The Grand Chamber evaluated the need in the present case for an interference with the freedom of expression in a democratic society. The Grand Chamber reiterated the First Chamber’s relevant aspects for an assessment of proportionality of the interference. These aspects are (i) the context of the comments, (ii) the measures applied by Delfi to prevent or remove defamatory comments, (iii) the liability of the authors of the comments and (iv) the consequences of the domestic proceedings for Delfi (paragraph 142). In essence, the Grand Chamber decided with regard to these aspects that Delfi exercised a substantial degree of control over the published comments (paragraph 145) and failed to install effective measures to prevent defamatory comments. The filtering mechanism, disclaimer (stating that the authors of the comments were accountable) and notice-and-take-down system in place were not considered sufficient (paragraph 152-159). Moreover, the fine (of EUR 320) imposed by the domestic courts was not disproportionate (paragraph 160).

The judgement was accompanied by two concurring opinions and a dissenting one. Judge Zupančič emphasised in his concurring opinion that an Internet portal such as Delfi should refrain from publishing any kind of anonymous comments. The joint concurring opinion of judges Raimondi, Karakas, De Gaetano and Kjølbro elaborated on the proportionality principle, critically noting that a pre-posting obligation for Delfi to monitor each and every user-generated comment could lead to disproportionate interference with its freedom of expression. In the dissenting opinion the judges Sajó and Tsotsoria expressed a fear of collateral censorship, and chose to emphasise that comments sections on the Internet should remain a crucial part of the new enhanced exchange of ideas among citizens. Furthermore, the dissenting judges concluded that the Grand Chamber failed to determine whether the interference by the domestic authorities was actually based on proper and credible grounds.

Implications of the judgement

The problem of authorship of user generated content is not a new one. In  recent years we could observe a tendency of policy makers to enlist intermediaries to police content on the Internet. The Grand Chamber decision fits within the trend.  Portals like Delfi could consequentially have more difficulties in avoiding the “Good Samaritan paradox” – when a hosting provider is punished for voluntarily keeping an eye on some parts of its platform. The decision will further prove difficult to reconcile with Article 15 of the E-Commerce Directive and its aim to prevent general monitoring and excessive censorship. General monitoring could have a deterrent, ‘chilling’ effect on the freedom of expression. The fear is expressed in the dissenting opinion, in which the judges state that active intermediaries’ new duty to pre-monitor offensive comments could discourage them to continue offering comments features on their platforms, resulting in a scenario of excessive censorship. It is unfortunate that the case was not referred for a preliminary ruling to the Court of Justice of the European Union in Luxemburg.  The case might have been decided differently if it had been referred to the CJEU for a compatibility assessment with the E-Commerce Directive.

 

 Authors and responible for this article: Pieter-Jan Ombelet and Aleksandra Kuczerawy of KU Leuven Interdisciplinary Centre for Law and ICT (ICRI-CIR) 

 Editor: Jochen Spangenberg (Deutsche Welle)

PS: you may also be interested in reading a related post on the topic by the same authors, published on the Media Policy Blog of the London School of Economics. It is entitled Not so different after all? Reconciling Delfi vs. Estonia with EU rules on intermediary liability