In the Grand Chamber Judgment in the case of Delfi AS v. Estonia (application no. 64569/09) dated 16 June 2015, the European Court of Human Rights found by fifteen votes to two, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
Facts of the Case
In January 2006, Delfi published an article on its webpage about a ferry company. This article discussed the company’s decision to change the route the ferries took to certain islands, which had caused the ice to break where ice roads could have been made. As a result, the cheaper and faster connection to the islands – by car on the ice road – was postponed for several weeks. Below the article, many readers had written highly offensive or threatening posts about the owner of the Ferry Company.
Delfi AS is one of the largest news portals in Estonia. While its readers may comment on news stories, Delfi has a policy to limit unlawful content, and operates a filter as well as a notice and take down system. At the request of the lawyers of the owner of the ferry company, Delfi AS removed the offensive comments about six weeks after their publication.
ECtHR Chamber Judgment of 2013
Relying on Article 10 of the European Convention on Human Rights, Delfi complained that the decision of the Estonian civil courts finding it liable for comments written by its readers violated its freedom of expression.
In its Chamber judgment of 10 October 2013 the Court held unanimously that there had been no violation of Article 10, and that the liability had been a justified and proportionate restriction on the portal’s right to freedom of expression.
Strong reactions to the 2013 judgment] emerged from civil society, amongst which a joint letter signed by 69 media organisations, internet companies, human rights groups and academic institutions which warned that this judgment would have ‘serious adverse repercussions for freedom of expression and democratic openness in the digital era’.
In brief, the question before the Grand Chamber was not whether the freedom of expression of the authors of the comments had been breached, but whether holding Delfi liable for comments posted by third parties had been in breach of its freedom to impart information.
The five third party interveners (among which the Helsinki Foundation for Human Rights and Article 19) stressed that intermediary service providers should not be treated as traditional media, and should therefore not be subjected to the same liability regime, and emphasised the value of public debate and the protection of freedom of expression.
The Grand Chamber of the Court has confirmed the Chamber’s Judgment that Article 10 of the Convention had not been breached, on similar but not identical grounds. The Grand Chamber found that the Estonian Courts’ finding of liability against Delfi had been a justified and proportionate restriction on the portal’s freedom of expression:
The Grand Chamber further agrees with the domestic courts that Delfi was to be considered a commercial publisher who had a considerable degree of control over the comments published on its portal, and was therefore deemed liable for the publication of the clearly unlawful comments:
“where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals (…) the rights and interest of others and of society as a whole may entitle contracting states to impose liability on internet news portals, without contravening article 10 ECHR, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties ” (Paragraph 159 of the Grand Chamber judgment)
The Judgment’s Impact on Equality and Non-discrimination
First and foremost, it is important to note that this judgment does not concern other internet fora where comments are disseminated, such as a social media platform or an internet discussion forum, but applies strictly to professionally managed internet news portals, run on a commercial basis. However, the judgment can have serious implications for the legal approach to online hate speech and the responsibilities of specific websites over user generated content, potentially making it easier and quicker to challenge online hate speech. The judgment will no doubt provoke much analysis as regards its impact on situations of conflicting fundamental rights. Furthermore, in line with the E-Commerce Directive Framework, many websites in Europe use notice and take down systems, which are implicitly rejected or criticised by this judgment. It therefore raises a series of practical questions relating to the EU policy approach towards the internet and intermediaries and this judgment.