Case comment: Defli AS v Estonia
Online editors of internet news portals will need to act quickly to moderate offensive 'below the line' comments according to guidance from the Grand Chamber decision in Delfi AS v Estonia.
In February 2015, the Equality and Human Rights Commission produced new legal guidance to clarify the “muddle and misunderstanding” surrounding freedom of expression laws in Britain. The guidance covers various issues, including freedom of expression within the context of online media and makes reference to the Strasbourg First Section judgement of Delfi AS v Estonia. The decision was upheld by the Grand Chamber on 16th June 2015 and this article will discuss the Grand Chamber’s reasoning as well as consider the scope and implications of the decision, in particular the need to put in place effective procedures allowing for rapid and appropriate means of balancing competing rights and interests.
Background to the case
The applicant company is the owner of Delfi, one of the largest Internet news portals in Estonia, also operating in Latvia and Lithuania. Like many news portals, readers could contribute to debate by reading and making comments. The site stated that authors were responsible for the content of their own comments. Comments were uploaded automatically without prior editing but the website ‘notice and take down’ policy allowed for comments to be removed in one of three ways; comments using certain obscene language were automatically filtered and deleted, comments flagged by a reader as inciting hatred were removed and where a victim of a defamatory comment notified Delfi, the comments would be immediately removed.
The comments at the centre of this case have to be understood in the context of Estonia’s unique geography. Islands off the coast of Estonia could be accessed by ferry, or alternatively by “ice roads;” public roads over the frozen sea which are open in winter and are a cheaper and faster option. SLK, a shipping company, had changed its ferry routes, causing ice to break which prevented planned ice roads from going ahead. In January 2006 Delfi published an article entitled “SLK Destroyed Planned Ice Road”. The Grand Chamber accepted the article was a balanced one which attracted no criticism in domestic proceedings, but it nonetheless attracted 185 comments, some of which contained personal threats and offensive language against “L”, a member of the board of SKL. The case focussed on twenty of the comments which are listed in the Judgement, and ranged from the threats to hit L with a cake, to calls for “lynching,” and from insults such as “rascal” to more colourful swear words. Around six weeks later, L’s lawyers requested the comments be removed and claimed damages. The comments were removed the same day but compensation was refused.
Civil proceedings ensued and the Estonian County court found that the comments went beyond justified criticism and the insults were not protected by freedom of expression. Delfi was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer. Subsequent appeals were unsuccessful.
The level of concern from online media is evident from the extent of third party interventions. The seven interveners were more or less unanimous in their support of the importance of online media in transforming the media from a one-way flow of communication into a participatory form of speech. Some argued that an online news discussion forum is technologically indistinguishable from hosting services such as social media/networking platforms, blogs/microblogs and others, where comments are automatically visible without human intervention and proactive human review of all user content is effectively impossible and costly.
It was not disputed that there was an interference with Delfi’s freedom of expression and that Article 10 (1) of the Convention was engaged. The Grand Chamber accepted that the Estonian Supreme Court’s application of the law was foreseeable in terms of Article 10 (2), taking into account the EU Directive on Electronic Commerce (2000/31/EC). The legitimate aim of protecting the reputation and rights of others was also not disputed. Accordingly the focus of the argument was whether the interference was necessary in a democratic society.
The Grand Chamber approached this question by asking whether the Estonian Supreme Court’s finding of liability had sufficient grounds in the circumstances of the case, addressing four issues; (i) the context of the comments, (ii) the measures applied by Delfi to prevent or remove defamatory comments, (iii) the liability of the actual authors of the comments as an alternative defender, and (iv) the consequences of the domestic proceedings for Delfi.
Firstly, the comments were considered in the context of a commercial news portal which went beyond that of a passive, technical service provider as Delfi encouraged comments and visits to the site to boost advertising revenue. Once the comments were posted, only Delfi could remove or amend them.
Secondly, the Grand Chamber noted that the comments were in fact removed, but not until six weeks after they had been posted and not until Delfi were contacted by L’s lawyers. Subsequent removal of the comments without delay after publication would have sufficed for Delfi to escape liability in domestic law. Given that Delfi would have been aware of the high volume of comments, which were well above average, the Grand Chamber did not consider the requirements to remove comments without delay to have been a disproportionate interference with Delfi’s freedom of expression.
In relation to the third question, the Grand Chamber noted that theoretically, an injured party could raise proceedings against either the individual author or Delfi. However in practice this would be hampered by the difficulty of establishing the identity of the authors and Delfi had not put in place any measures to assist a victim of hate crime to bring proceedings against the author.
Finally, the Court noted that a fine of 320 euros for the operator of one of the largest internet news portals in Estonia was not excessive (L had claimed 32,000 euros). In practical terms, Delfi had now changed its protocols to provide a team of online moderators.
The Court held that this interference with Delfi’s freedom of expression was not disproportionate. Accordingly, there was no violation of Article 10.
Scope of the decision
The Judgement goes some way to clarify what is expected of a large, commercial online news portal in terms of combating hate speech: “If accompanied by effective procedures allowing for rapid response, the (notice and take down) system can function in many cases as an appropriate tool for balancing the rights and interests of all those involved. However, in cases …where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, … the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties.” (para 159)
However, as this was the first case from Strasbourg to address this issue, the Grand Chamber was careful to limit the scope of the decision.
The Court noted that the comments in dispute amounted to hate speech or incitement to violence so did not enjoy the protection of Article 10. The issue was therefore limited to whether the domestic courts, in holding the company liable for the comments of third parties, were in breach of its freedom to impart information under Article 10.
It was also emphasised at para 113 that “the court considers that because of the particular nature of the Internet, the ‘duties and responsibilities’ that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content.” The judgement specifically distinguished an internet news portal from an Internet discussion forum or a bulletin board or a social media platform where the provider does not offer any content and where the content provider may be a private person running the website, or a blog as a hobby.
The decision was not unanimous. In a joint dissenting judgement, Judges Sajo and Tsotsoria, were mindful of the Court’s role being not only to decide the case before it, but also to elucidate, safeguard and develop the rules instituted by the Convention. They were not reassured by the Court’s attempts to limit the scope of the judgement, commenting; “Freedom of expression cannot be a matter of a hobby.”
The dissenting judgement took issue with the lack of proper analysis of the comments before they were characterised as racist or inciting violence, as well as the apparent lack of a detailed balancing exercise in the proportionality assessment. One of the overarching concerns related to “collateral censorship,” warning that where the state holds a private party liable for the speech of another, there is a strong incentive to err on the side of limiting liability by over-censorship and stifling of protected speech.
Nonetheless, the dissenters acknowledged the importance of combatting racist speech and ended with cautious optimism that this decision will not restrict the democracy-enhancing potential of the new media.
As the law in this area continues to develop, it is hoped that the Commission’s guidance may be of some interest to news portal moderators and website owners. Page 17 may be of particular relevance, as it states:
“Freedom of expression applies to online media in much the same way as it does to print media. In particular, website owners are free to decide for themselves which material they wish to publish and it is not a breach of freedom of expression for a website to moderate comments in order to remove material which might prove offensive. However, care should be taken not to do this in a discriminatory manner (for example, by removing racist language except when it relates to Gypsies and Travellers).”
 Application no. 64569/09
Last updated: 20 Jun 2016