16.06.2015
The European Court of Human Rights has given its long-awaited ruling in Delfi v Estonia.
In a wide-ranging judgment of 162 paragraphs (and appendices and numerous footnotes), the Grand Chamber of the European Court of Human Rights has given its judgment in Delfi AS v Estonia (Application no. 64569/09).
The Chamber of the First Section of the European Court of Human Rights (the “ECHR”) found Estonia’s most popular Internet news portal, Delfi AS (“Delfi”), liable in damages for defamatory and anonymous comments posted by third parties on its websites…
Background
Delfi posted an article in 2006… Whilst the article itself was not defamatory, it attracted 185 comments, about twenty of which were threatening and offensive posts against [SLK]… The comments were taken down the same day following a request from SLK’s lawyers, but Delfi refused an additional claim for non-pecuniary damages of €32,000. Estonia’s County Court found against Delfi and awarded SLK’s owner damages in the sum of €320 for “[violation] of his personality rights”.
Estonia’s Supreme Court upheld the County Court’s decision. It ruled that Delfi is a provider of content services and distinguished it from an information service provider (“ISP”) and the applicable provisions of the e-Commerce Directive. According to its 2009 decision, both Delfi and the third parties who posted the comments were publishers of material in dispute. The Supreme Court said that Delfi had a legal obligation to avoid causing reputational damage, and it should have prevented publication of the defamatory material.
ECHR judgment
The Grand Chamber has (by a majority of 15 to 2) supported the Chamber judgment that there had been no violation of the ECHR, Article 10 when the State imposed liability on an online news portal for highly offensive comments left by readers of a news item the portal published. In essence, the Grand Chamber takes the view that the news portal could have done more, in terms of filtering and moderating, where various clues to the odious nature of the comments were present.
The judgment will be seen as a blow to free speech and may have important implications for those hosting online comment. It may, in particular, require a reappraisal of the level of filtering or automatic blocking of comments that can be applied.