By David Cook
The case concerning Delfi AS, the Estonian online news site, has the potential to be one of the most important cases relating to the responsibilities of internet publishers in the increasing digital era and to re-shape the way in which, and by whom, content is shared electronically.
The origins of this case date back to 2006, when Delfi AS published an article about the decision of a ferry company to change the route taken to certain islands and the repercussions of this decision.
The article attracted a substantial number of comments, some of which included personal threats and offensive language towards the owner of the company. Successful proceedings were brought against Delfi AS on the basis that it was liable for these third-party comments and the case progressed to the Estonian Supreme Court before Delfi appealed to the European Court of Human Rights (ECtHR).
Notably, the ECtHR accepted the interpretation of the Estonian courts that Delfi AS was a publisher and so could not rely on the exceptions contained within the EU Directive on Electronic Commerce or the domestic Information Social Services Act. They therefore confined their judgment to consideration of Art 10 of the Convention.
It was not disputed that there had been an interference with Art 10, and the ECtHR held that such interference was proscribed by law because, as a professional and successful company, Delfi should have been aware of relevant legislation and case law.
When considering whether the interference was necessary in a democratic society, the ECtHR held that Delfi:
(a) had a policy and procedure in place for automatically detecting and deleting certain words and phrases, and a notice and take down system, but still did not go far enough to ensure “sufficient protection for the rights of third persons”;
(b) should have anticipated that the article would be controversial and generate negative posts; and,
(c) had a policy that users could post either anonymously or under a pseudonym and had therefore made it difficult to claim against the individual writers.
They therefore concluded that it was justifiable and proportionate to hold Delfi responsible for the
third party comments.
This judgment has been described as a “serious blow to freedom of expression online”. A letter from 69 media organisations supporting the referral request to the Grand Chamber stated that if the current judgment were to remain, it would have “serious adverse repercussions for freedom of expression and democratic openness in the digital era”. It has certainly generated much media commentary.
Prima facie, the decision appears substantially detrimental to online freedom of expression, with perhaps the greatest concern being the suggestion that Delfi should have appreciated that such an article would be controversial. Placing this burden on a website owner/operator seems a step too far and one that could encourage a more defensive, and so limiting, approach to the sharing and reporting of news articles. Furthermore, it is in direct opposition to the approach taken by the UK where, under ss 5 and 10 Defamation Act 2013, it is the authors of such comments who are held primarily responsible.
The situation is compounded by the fact that the original article itself was, in the view of the ECtHR, balanced and provided the manager of the company with an opportunity to explain the situation.
A wider concern raised by the judgment is that if website operators are held responsible for the comments of third parties, those who have been aggrieved are more likely to launch proceedings against the website owners rather than the individuals in question because, the vast majority of the time, it will make more financial sense to do so.
Unquestionably, the decision of the ECtHR in this case has raised significant issues about the role and responsibilities of internet publishers in the modern age, but it is premature to regard the judgment as dramatically changing the electronic landscape and limiting freedom of expression online. Notwithstanding this, it does provide an insight into the evolving attitudes in the ECtHR about the continuing “privacy –v- freedom of expression” struggle, and it will be interesting to see how the Grand Chamber deals with these issues when the case comes before it later this year.