CONCURRING OPINION OF JUDGE ZUPAN Č I Č

In general, I agree with the outcome in this case. However, I would like to add a few historical and simply ethical observations.

The substance of the case concerns the protection of personal integrity, that is, of personality rights in Estonia and also, after this case, elsewhere in Europe. For many years personality rights were, so to speak, discriminated against vis- Ã -vis freedom of expression, specifically the freedom of the press. In my concurring opinion in V on Hannover v. Germany (no. 59320/00, ECHR 2004-VI), I wrote that “ [t]he Persönlichkeitsrecht doctrine imparts a higher level of civilised interpersonal deportment ” , and I believe the facts of the case at hand confirm this finding.

The problem derives from the great dissimilarity between the common law on the one hand and the Continental system of law on the other hand. The notion of privacy in American law, for example, only derived from the seminal article by Warren and Brandeis [3] , who happened, because he had been schooled in Germany, to be able to instruct himself about personality rights in German. The notion of privacy as a right to be left alone, especially by the media, was, until that time, more or less unfamiliar to the Anglo-American sphere of law. The article itself addressed precisely the question of abuse by the media. Obviously, at that time there were only printed media but this was sufficient for Justice Brandeis to show his own extreme indignation.

On the other hand, the Continental tradition concerning personality rights goes back to Roman law ’ s actio iniurirarum , which protected against bodily injury but also against non-bodily convicium , adtemptata pudicitia and infamatio [4] . Thus, personality rights can be seen as the predecessor and the private-law equivalent of human rights. Protection, for example, against defamation and violations of other personality rights has a long and imperative tradition on the Continent, whereas libel and slander are the weak corresponding rights in Anglo-American law.

According to Jean-Christophe Saint-Paul:

“ Les droits de la personnalité constituent l ’ ensemble des prérogatives juridiques portant sur des intérêts moraux (identité, vie privée, honneur) et le corps humain ou les moyens de leur réalisation (correspondances, domicile, image), exercés par des personnes juridiques (physiques ou morales) et qui sont sanctionnés par des actions en justice civiles (cessation du trouble, réparati on des préjudices) et pénales.

Au carrefour du droit civil (personnes, contrats, biens), du droit pénal et des droits de l ’ homme, et aussi des procédures civile et pénale, la matière fait l ’ objet d ’ une jurisprudence foisonnante, en droit interne et en droit européen, fondée sur des sources variées nationales (Code civil, Code pénal, Loi informatique et libertés, Loi relative à la liberté de la presse) et internationales (CESDH, PIDCP, DUDH, Charte des droits fondamentaux), qui opère une balance juridictionnelle entre la protection de la personne et d ’ autres valeurs telles que la liberté d ’ expression ou les nécessités de la preuve. [5] ”

The situation in Germany is as follows:

“ The general right of personality has been recognised in the case - law of the Bundesgerichtshof since 1954 as a basic right constitutionally guaranteed by Articles 1 and 2 of the Basic Law and at the same time as an ‘ other right ’ protected in civil law under Article 823 § 1 of the BGB [ Bundesgesetzbuch – German Civil Code] (constant case - law since BGHZ [Federal Court of Justice, civil cases] 13, 334, 338 ...). It guarantees as against all the world the protection of human dignity and the right to free development of the personality. Special forms of manifestation of the general right of personality are the right to one ’ s own picture ( sections 22 et seq. of the KUG [ Kunsturhebergesetz – Artistic Copyright Act]) and the right to one ’ s name ( Article 12 of the BGB). They guarantee protection of the personality for the sphere regulated by them. [6] ”

Thus, it is almost difficult to believe that this private-law parallel to the more explicit constitutional-law and international-law protection of human personality rights has been not only disregarded but often simply overridden by contrary considerations.

Also, in my opinion, it is completely unacceptable that an Internet portal or any other kind of mass media should be permitted to publish any kind of anonymous comments. We seem to have forgotten that “ letters to the editor ” , not so long ago, were double-checked as to the identity of the author before they were ever deemed publishable. The Government argued (see paragraph 90 of the present judgment) that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason.

On the other hand, in Print Zeitungverlag GmbH v. Austria (no. 26547/07, 10 October 2013 ) , a judgment delivered on the same day as the Chamber judgment in Delfi , the Court held that an award of damages amounting to 2,000 euros (EUR) for the publication of an anonymous letter in print was – and rightly so! – compatible with its previous case-law [7] .

The mass media used to be run according to the obvious principle that the great freedom enjoyed by the press implied a commensurate level of responsibility. To enable technically the publication of extremely aggressive forms of defamation, all this due to crass commercial interest, and then to shrug one ’ s shoulders, maintaining that an Internet provider is not responsible for these attacks on the personality rights of others, is totally unacceptable.

According to the old tradition of the protection of personality rights, which again go back to Roman law, the amount of approximately EUR 300 awarded in compensation in the present case is clearly inadequate as far as damages for the injury to the aggrieved persons are concerned. The mere comparison with the above-mentioned judgment in Print Zeitungverlag GmbH , which involved only two aggrieved persons and a printed medium with very limited distribution, demonstrates that a much higher award of damages was called for in the present case.

I do not know why the national courts hesitate in adjudicating these kinds of cases and affording strict protection of personality rights and decent compensation to those who have been subject to these kinds of abusive verbal injuries, but I suspect that our own case-law has something to do with it.

However, the freedom of expression, like all other freedoms, needs to end precisely at the point where somebody else ’ s freedom and personal integrity is negatively affected.