In the case of Delfi AS v Estonia, the European Court of Human Rights (ECHR) upheld an Estonian domestic court decision to hold Delfi, one of the largest Estonian internet news portals, liable for defamatory comments posted by its readers beneath its articles.
Delfi argued that the ruling of the Estonian court, which found that Delfi had been liable for defamatory content appearing on its site, violated its right to freedom of expression under Article 10 of the European Convention of Human Rights (the “Convention”). The ECHR considered the balance between the right to freedom of expression and the right, under article 8 of the convention, to privacy and respect which the complainant was entitled to and found that the limit placed on Delfi’s freedom of expression was justified by the legitimate aim of protecting the reputation and rights of others and was necessary in a democratic society.
A number of factors were considered when determining whether the restriction on Delfi’s rights was necessary. Firstly, the ECHR considered that the nature of the article would have inevitably attracted negative commentary and so Delfi should have exercised greater caution in this regard. The ECHR acknowledged that Delfi had systems in place to moderate its site including a system to delete comments containing stems of certain works and a notice and take-down system whereby users could easily notify Delfi of material that the user considered inappropriate. Occasionally, Delfi would also remove material at its own initiative. ECHR did not consider these measures to go far enough however, especially in view of the highly topical nature of the article the defamatory comments stemmed from. The ECHR noted that attracting comments to its articles was part of Delfi’s professional activity and was linked to advertising revenue. The ECHR also noted that there were measures that Delfi could have taken to avoid defamatory comments appearing on the site, such as requiring users to register before they could post comments, monitoring comments before making them public or speedy review once posted.
In the Estonian courts, Delfi had argued that it should have been exempt from liability for content appearing on its site as a hosting service under Article 14 of the EU Directive on Electronic Commerce, however the local courts noted that Delfi’s role “was not of a merely technical, automatic and passive nature; instead it invited users to add comments” and so held that it was liable as publisher of the defamatory material. It being established by the domestic courts that Delfi’s was a publisher or discloser, its Article 10 application to the ECHR was permitted to proceed.
The case is a cautionary reminder to internet portals in determining whether they can benefit from hosting exemptions under the E-Commerce Directive and if not, whether their measures sufficiently protect third-party rights. This decision is not yet final and may be referred to the Grand Chamber of the ECHR.