JOINT CONCURRING OPINION OF JUDGES RAIMONDI, KARAKA Ş , DE GAETANO AND KJØLBRO

1 . We agree that there has been no violation of Article 10 of the Convention. However, we would like to clarify our position as regards two issues: ( a ) the Court ’ s reading of the Supreme Court ’ s judgment, and ( b ) the principles underlying the Court ’ s assessment of the complaint.

2 . Firstly, the Court ’ s reading of the Supreme Court ’ s judgment (see paragraphs 153-54 of the present judgment ) is decisive for the assessment of the case.

3 . In reaching its decision the Supreme Court stated, inter alia , that it followed from the obligation to avoid causing harm that Delfi “ should have prevented the publication of the comments with clearly unlawful content ” . Furthermore, the Supreme Court held that Delfi, after the disclosure of the comments in question, had “ failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative ” . The Supreme Court found that Delfi ’ s “ inactivity [was] unlawful ” , and that Delfi was liable as it had “ not proved the absence of culpability ” (see the extract quoted in paragraph 31 of the present judgment).

4 . There are two possible readings of the Supreme Court ’ s judgment: ( a ) Delfi was liable as it did not “ prevent ” the unlawful comments from being published, and its liability was aggravated by the fact that it did not subsequently “ remove ” the comments; or ( b ) Delfi did not “ prevent ” the unlawful comments from being published and , as it did not subsequently “ remove ” the comments without delay, it was liable for them.

5 . The Court has decided to read the Supreme Court ’ s judgment in the second sense, thereby avoiding the difficult question of the possible liability of a news portal for not having “ prevented ” unlawful user-generated comments from being published. However, had the Court read the Supreme Court ’ s judgment in the first sense, the outcome of the case might have been different.

6 . If the Supreme Court ’ s judgment were to be understood in the first sense, it would enshrine an interpretation of domestic legislation that would entail a risk of imposing excessive burdens on a news portal such as Delfi. In fact, in order to avoid liability for comments written by readers of its articles, a news portal would have to prevent such comments from being published (and would also have to remove any such comments that were published). This might, in practice, require an effective monitoring system, be it automatic or manual. In other words, a news portal might have to pre-monitor comments in order to avoid publishing clearly unlawful comments made by readers. Furthermore, if the liability of a news portal was closely linked to the clearly unlawful nature of the comments, without it being necessary for the plaintiff to prove that the news portal knew or ought to have known that the comments would be or had been published on the portal, the portal would in practice be obliged to act on the assumption that such comments could be made by readers and therefore to take the necessary measures to avoid them being published, which in practice would require pre-monitoring measures to be adopted.

7 . Therefore, in our view, finding a news portal liable for not having “ prevented ” the publication of user-generated comments would in practice imply that the portal would have to pre-monitor each and every user-generated comment in order to avoid liability for any unlawful comments. This could in practice lead to a disproportionate interference with the news portal ’ s freedom of expression as guaranteed by Article 10.

8 . Secondly, the Court should have stated more clearly the underlying principles leading it to find no violation of Article 10. Instead, the Court has adopted case-specific reasoning and at the same time has left the relevant principles to be developed more clearly in subsequent case-law.

9 . In our view, the Court should have seized the opportunity to state more clearly the principles relevant to the assessment of a case such as the present one.

10 . A news portal such as Delfi, which invites readers of articles to write comments that are made public on the portal, will assume “ duties and responsibilities ” as provided for in domestic legislation. Furthermore, it follows from Article 8 of the Convention that member States have an obligation to protect effectively the reputation and honour of individuals. Therefore, Article 10 of the Convention cannot be interpreted as prohibiting member States from imposing obligations on news portals such as Delfi when they allow readers to write comments that are made public. In fact, member States may in certain circumstances have an obligation to do so in order to protect the honour and reputation of others. Thus, member States may decide that a news portal is to be regarded as the publisher of the comments in question. Furthermore, they may prescribe that news portals may be held liable for clearly unlawful comments, such as insults, threats and hate speech, which are written by users and made public on the portal. However, in exercising their power to do so, member States must comply with their obligations under Article 10 of the Convention. Therefore, domestic legislation should not restrict freedom of expression by imposing excessive burdens on news portals.

11 . In our view, member States may hold a news portal, such as Delfi, liable for clearly unlawful comments such as insults, threats and hate speech by readers of its articles if the portal knew, or ought to have known, that such comments would be or had been published on the portal. Furthermore, member States may hold a news portal liable in such situations if it fails to act promptly when made aware of such comments published on the portal.

12 . The assessment of whether the news portal knew or ought to have known that clearly unlawful comments may be or have been published on the portal may take into account all the relevant specific circumstances of the case, including the nature of the comments in question, the context of their publication, the subject matter of the article generating the comments, the nature of the news portal in question, the history of the portal, the number of comments generated by the article, the activity on the portal, and how long the comments have appeared on the portal.

13 . Therefore, holding a news portal liable for clearly unlawful comments such as insults, threats and hate speech under such circumstances will in general be compatible with Article 10 of the Convention. Furthermore, member States may also hold a news portal liable if it has failed to take reasonable measures to prevent clearly unlawful comments from being made public on the portal or to remove them once they have been made public.

14 . In our view, these underlying principles should have been stated more clearly in the Court ’ s judgment.

15 . Having regard to the clearly unlawful nature of the comments in question, as well as the fact that they remained on the news portal for six weeks before they were removed, we do not find it disproportionate for the Supreme Court to find Delfi liable as it had “ failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative ” . In fact, not being aware of such clearly unlawful comments for such an extended period of time almost amounts to wilful ignorance, which cannot serve as a basis for avoiding civil liability.

16 . Therefore, we did not have any problems voting together with the majority. However, the Court should, in our view, have seized the opportunity to clarify the principles underlying its assessment, irrespective of the sensitive nature of the questions raised by the application.