Information Note on the Court’s case-law 167

October 2013

Delfi AS v. Estonia - 64569/09

Judgment 10.10.2013 [Section I]

Article 10

Article 10-1

Freedom of expression

Award of damages against internet news portal for offensive comments posted on its site by anonymous third parties: no violation

[This case was referred to the Grand Chamber on 17 February 2014]

Facts – The applicant company owned one of the lar gest Internet news portals in Estonia. On its website, readers could anonymously and without prior registration post comments below the published articles. Although the applicant company could not edit or moderate such comments, it could remove them using a prior automatic-word filtering system or on being alerted by readers. In 2006 the applicant published an article stating that a ferry company had changed its routes thereby causing the break-up of ice at potential locations of ice roads. As a result, the opening of the roads – which were a cheaper and faster connection to the Estonian islands compared to the company’s ferry services – had to be postponed for several weeks. A number of comments containing personal threats and offensive language directed ag ainst the ferry-company owner were posted below the article. The applicant company removed them some six weeks later at the insistence of the ferry company. The owner of the ferry company instituted defamation proceedings against the applicant company, whi ch was ultimately ordered to pay EUR 320 in damages.

Law – Article 10

(a) Applicability – The Government had argued that, since the applicant company claimed that it was neither the author nor the discloser of the defamatory comments, Article 10 did not a pply. The Court noted that the applicant company had been directly affected by the domestic courts’ decisions, which held it liable for defamation in its capacity as the discloser of the comments posted on its portal. Therefore, its complaint related to fr eedom of expression and fell within the scope of Article 10.

(b) Merits – The applicant company had argued that the domestic law did not impose on it an obligation to pre-monitor content posted by third parties, and that its liability was limited under th e EU Directive on Electronic Commerce*. However, the domestic courts found that this was not the case and the Court recalled in this respect that it was primarily for the national courts to interpret domestic legislation. The interference with the applican t’s freedom of expression was lawful within the meaning of Article 10, because the domestic legislation and case-law made it clear that a media publisher was liable for any defamatory statements made in its media publication. In this regard, considering th e publication of articles and comments on an Internet portal to be a journalistic activity and its administrator to be a publisher could be seen as applying the existing tort law to a novel area related to new technologies.

As to whether the interference was necessary in a democratic society, the article that had given rise to the defamatory comments concerned a matter of public interest and the applicant company could have foreseen the negative reactions and exercised a degr ee of caution in order to avoid being held liable for an infringement of others’ reputations. However, the prior automatic filtering and notice-and-take-down system used by the applicant company did not ensure sufficient protection for the rights of third parties. Moreover, publishing news articles and making public readers’ comments on them was part of the applicant company’s professional activity and its advertising revenue depended on the number of readers and comments. Since the applicant company was ab le to exercise a substantial degree of control over readers’ comments, it was in a position to predict the nature of the comments a particular article was liable to prompt and to take technical or manual measures to prevent defamatory statements from being made public. Furthermore, there had been no realistic opportunity of bringing a civil claim against the actual authors of the comments as their identity could not be easily established. In any event, the Court was not convinced that measures allowing an i njured party to bring a claim only against the authors of defamatory comments would have guaranteed effective protection of the injured parties’ right to respect for private life. It was the applicant company’s choice to allow comments by non-registered us ers, and by doing so it must be considered to have assumed a certain responsibility for such comments. For all the above reasons, and considering the moderate amount of damages the applicant company was ordered to pay, the restriction on its freedom of exp ression was justified and proportionate.

Conclusion : no violation (unanimously)

(See also Krone Verlag GmbH & Co. KG v. Austria (no. 4) , 72331/01, 9 November 2006)

* Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electroni c commerce, in the Internal Market.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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