The judgement in Delfi AS v Estonia (64569/09) was delivered by the European Court of Human Rights (“ECHR”) on 10th October 2013.The case was recently highlighted in the Irish Times on Saturday 12th October and we thought we would take a closer at the case in today’s blog.
Delfi AS is the owner of Delfi which is an internet news portal that publishes up to 330 news articles a day on the internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania. At the time of the postings, the news articles allowed readers to “add your comment” and details of the commenter’s name and his or her email address (optional). There were also buttons allowing for “publish the comment” and “read comments”. Any comments posted were automatically uploaded and not edited or moderated by Delfi. It was noted that the articles received about 10,000 readers comments daily and the majority were posted under pseudonyms. There was a system of notify and take down in place however and any reader could mark a comment as an insulting or mocking message and it was removed expeditiously. A victim of a defamatory comment could also directly notify the applicant company in which case the comment was removed immediately. Delfi had taken steps to advise users that the comments were not of its opinion and that the authors of the comments were responsible for their content.
On 24th January 2006 Delfi published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”. SLK ( AS Saaremaa Laevakompanii) provides a public ferry transport service between the mainland and some islands. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. On 24th and 25th January 2006 the article attracted 185 comments and approximately 20 contained personal threats and offensive language directed against a member of the supervisory board of SLK (“L”) who was also the company’s sole shareholder at the time.
On 9th March 2006 L’s lawyers requested that the applicant company remove the offensive comments and claimed approximately €32,000 in compensation for non-pecuniary damage. On the same day approximately 20 offensive comments were removed by the applicant company. On 23rd March 2006 the applicant company responded to the request from L’s lawyers and stated that the comments had been removed under the “notice and take down obligation” and refused the claim for damages. On 13th April 2006 L brought a civil suit against the applicant company. By a judgement of 25th June 2007 L’s claim was dismissed. The County Court found that the applicant company’s responsibility was excluded under the Information Society Services Act, which was based on the Directive on Electronic Commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8th June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internet market).On 22nd October 2007 the Tallinn Court of Appeal allowed L’s appeal and the County Court’s judgement was quashed and the case referred back to the first instance court for new consideration where it was found in L’s favour.
On 16th December 2008 the Tallinn Court of appeal upheld the County Court’s judgement. It emphasised that the applicant company had not been required to exercise preliminary control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments from the portal. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on potential victims.
The Court of Appeal rejected the applicant company’s position that its responsibility was excluded on the basis of the Information Society Services Act. The Court noted that the applicant company was not a technical intermediary in respect of the comments and that its activity was not of a merely technical, automatic and passive nature rather it invited users to add comments. Therefore the applicant company was a provider of content services rather than of technical services.
On 10th June 2009 the Supreme Court dismissed the applicant company’s appeal and upheld the Court of Appeal’s judgement but modified the reasoning. The Court approved the lower court’s interpretation of the Information Services Act and noted that an information society service provider (who falls under that Act and the Directive on Electronic Commerce) had neither knowledge of nor control over information which was transmitted or stored. The Supreme Court further noted that by contrast, a provider of content services governed the content of information that was being stored. In the current case, the Court noted that the applicant company had integrated the comment environment into its news portal and invited users to post comments. The volume of comments had an effect om the number of visits to the portal and on the applicant company’s revenue from advertisements published on the portal. The Court observed that the applicant company had an economic interest in the comments and “the fact that the applicant company did not write the comments itself did not imply that it had no control over the comment environment“. The applicant company had enacted the rules of comment and removed comments if the rules were breached. The Court observed that
“….the users on the contrary could not change or delete the comments they had posted; they could merely report obscene comments. Thus the applicant company could determine which comments were published and which were not. The fact that it made no use of this possibility did not mean that it had no control over the publishing of the comments”.
The Supreme Court further considered that both the applicant company and the authors of the comments were to be considered publishers of the comments. The Court referred to the economic interest of an internet portal’s administrator, “which made it a publisher as entrepreneur, similar to a publisher of printed media”.
The Supreme Court concluded that the applicant company had a legal obligation to avoid causing damage to other persons and the applicant company should have prevented clearly unlawful comments being published. After the comments had been published, the applicant company had failed to remove them on their own initiative although it must have been aware of their unlawfulness.
From 1st October 2009, Delfi had provided on its website that it did not allow persons who had posted offensive comments to post a new comment until the commenter had read and accepted the rules of commenting. The court heard that Delfi had set up a panel of moderators who carried out follow up moderation of comments posted on the portal. In August 2009 Delfi’s moderators had removed approximately 8% of comments mainly consisting of spam or irrelevant comments. The share of defamatory comments had been less than 5% of the total number of comments.
Alleged Violation of Article 10 of the Convention
The applicant complained that holding it liable for the comments posted by the readers of its internet news portal infringed its freedom of expression as provided for in Article 10 of the Convention. The Government contested the argument however the Court noted that the applicant company was sued for defamation in respect of comments posted on its internet portal and was deemed to be the discloser or publisher of the comments (along with the authors) and held liable for its failure to prevent disclosure of or remove of its own initiative the unlawful comments. The court ruled that it was obliged to pay the plaintiff compensation for non-pecuniary damage he had sustained.
In essence the applicant argued that the domestic courts had interfered with its freedom of expression (right to impart information) as it had been forced to alter its business model completely and compelled to monitor every comment posted on its news portal. Referring to the cases of Google France and Google and L’Oreal and Others , the applicant company argued that it had not played an “active role” but had merely stored comments on its server, set the terms of its service, been (indirectly) remunerated for that service and provided general information to its customers (readers, commentators). The Government rejected the applicant’s argument that it had to change its business model and made a number of arguments in respect of the control of the website and that the restriction was necessary in a democratic society.
The Court noted at the outset that there was no dispute that comments posted by readers were of a defamatory nature however the parties views differed as to whether the applicant company’s civil liability for the defamatory comments amounted to a disproportionate interference with its freedom of expression. The Court considered the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company’s liability and finally the consequences of the domestic proceedings for the applicant company.
The Court noted that “…the applicant company was expected to exercise a degree of caution….in order to avoid being held liable for an infringement of other person’s reputations“. As regards the measures applied, the Court considered that the word based filter was “insufficient for preventing harm being caused to third persons“.
In respect of the level of control exercised, the Court considered that the applicant company “exercised a substantial level of control over the comments published on its portal even though it did not make as much use as it could have done of the full extent of control at its disposal“.
The Court considered that “The ease of disclosure of information on the Internet and the substantial amount of information there means that it is a difficult task to detect defamatory statements and remove them“. It concluded that the fact that the comments were posted in reaction to an article published by the applicant company “in its professionally managed new portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to avoid damage being caused to other partie’s reputations and to ensure a realistic possibility that the authors of the comments will be held liable…..the domestic courts finding that the applicant company was liable for the defamatory comments posted by its readers on its Internet news portal was a justified and proportionate restriction on the applicant company’s right to freedom of expression” and hence there was no breach of Article 10.