Application Number 64569/09
European Court of Human Rights
The case concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. The portal complained that being held liable for the comments of its readers breached its right to freedom of expression. The Court held that the liability of Delfi was a justified and proportionate restriction on the portal’s right to freedom of expression. This was because the comments were highly offensive, the portal failed to prevent them from becoming public, profited from their existence, allowed their authors to remain anonymous and that the fine imposed by the Estonian courts was not excessive.
Link: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-126635%22]}
Theme(s): Ethnic Hatred/Internet
Date: 16 June 2015
Description of applicant(s): An internet news portal
Brief description of facts: Delfi owns one of the largest internet news sites in the country. In January 2006, Delfi published an article on its webpage about a ferry company. It discussed the company’s decision to change the route its ferries took to certain islands. This had caused ice to break where ice roads could have been made in the near future. As a result, the opening of these roads – a cheaper and faster connection to the islands compared to the ferry services – was postponed for several weeks. Below the article, readers were able to access the comments of other users of the site. Many readers had written allegedly offensive or threatening posts about the ferry operator and its owner. The owner sued Delfi in April 2006, and successfully obtained a judgment against it in June 2008. The Estonian court found that the comments were defamatory and that Delfi was responsible for them. The owner of the ferry company was awarded 5,000 Kroons in damages (around 320 euros). An appeal by Delfi was dismissed by Estonia’s Supreme Court in June 2009.
Comments included:
fucking shitheads…
they bath in money anyways thanks to that monopoly and State subsidies and now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!
good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into oven!
[little L.] go and drown yourselfWhat are you whining, kill this bastard once[.] In the future the other ones … will know what they will risk, even they will only have one little life.
(Alleged) target(s) of speech: Company member/Jews
The Court’s assessment of the impugned speech: In assessing the case, the Court assessed four key issues. First, the context of the posts. According to the ECtHR, the comments had been insulting, threatening and defamatory. Given the nature of the article, the company should have expected offensive posts, and exercized an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation.
Second, the steps taken by Delfi to prevent the publication of defamatory comments. The article’s webpage did state that the authors of comments would be liable for their content and that threatening or insulting comments were not allowed. The webpage also automatically deleted posts that contained a series of vulgar words, and users could tell administrators about offensive comments by clicking a single button, which would then lead to the posts being removed. However, the warnings failed to prevent a large number of insulting comments from being made, and they were not removed in good time by the automatic-word filtering or by the notice-and-take-down notification system.
Third, whether the actual authors of the comments could have been made liable for them. The owner of the ferry company could, in principle, have attempted to sue the specific authors of the 3 offensive posts rather than Delfi. However, the identity of the authors would have been extremely difficult to establish, as readers were allowed to make comments without registering their names. Therefore, many of the posts were anonymous. Making Delfi legally responsible for the comments was therefore practical; but it was also reasonable, because the news portal received commercial benefit from comments being made.
Finally, the court addressed the consequences of Delfi being made liable. The sanctions imposed by the Estonian courts against the company had been fairly small. Delfi was required to pay a EUR 320 fine, and the courts did not make any orders about how the portal should protect third party rights in the future in a way that might limit free speech.
Important paragraph(s) from the judgment:
Para 89: The Court notes that in the interested person’s opinion, shared by the domestic courts, 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 persons. The domestic courts attached importance in this context to the fact that the publication of the news articles and making public the readers’ comments on these articles was part of the applicant company’s professional activity. It was interested in the number of readers as well as comments, on which its advertising revenue depended. The Court considers this argument pertinent in determining the proportionality of the interference with the applicant company’s freedom of expression. It also finds that publishing defamatory comments on a large Internet news portal, as in the present case, implies a wide audience for the comments. The Court further notes that the applicant company – and not a person whose reputation could be at stake – was in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public. Indeed, the actual writers of comments could not modify or delete their comments once posted on the Delfi news portal – only the applicant company had the technical means to do this. Thus, the Court considers that the applicant company exercised a substantial degree of control over the comments published on its portal even if it did not make as much use as it could have done of the full extent of the control at its disposal.
Para. 94: Based on the above elements, in particular the insulting and threatening nature of the comments, the fact that the comments were posted in reaction to an article published by the applicant company in its professionally-managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to avoid damage being caused to other parties’ reputations and to ensure a realistic possibility that the authors of the comments will be held liable, and the moderate sanction imposed on the applicant company, the Court considers that in the present case the domestic courts’ finding that the applicant company was liable for the defamatory comments posted by readers on its Internet news portal was a justified and proportionate restriction on the applicant company’s right to freedom of expression.
ECHR Article: Article 10
Violation: No
Use of ‘hate speech’ ‘extreme speech’ by the Court in its assessment? Yes:
Para. 99: Therefore, the Court considers that the applicant company, by publishing the article in question, could have realised that it might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech.