Seven Facts about Delfi v. Estonia Case and Online Comments

Posted by: raminta 9 years, 2 months ago

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Four months ago the Grand Chamber of the European Court of Human Rights (ECHR) ruled Estonian news portal Delfi to be liable for anonymous and insulting comments posted by third parties. Even though Delfi was not the author of these comments, the Grand Chamber agreed with Estonian courts and confirmed that Delfi did not take timely measures to remove hate speech and violence inciting remarks, hence the company was obliged to pay damages to the victim.

This ruling was talked about widely in Europe and waved warnings from international organisations about possible negative impacts on the freedom of expression and free media. On the other side many opinions were expressed in support of the ruling, calling it a great measure which will end unethical and hatred inciting comments. Some discussions arose in Lithuania arguing that the ruling will have negative impact on the revenues of the Internet media; there were also several opinions stating that all Internet portals would then be liable for comments posted by third parties. Many of these opinions and interpretations contravened the ruling, so it was considered necessary to explain the six conclusions made by the Grand Chamber because of their important impact on the freedom of expression and the protection of privacy, honour and dignity.

The case of Delfi v. Estonia began in 2006, when Estonian Delfi published the article "SKL Destroyed Planned Ice Road“ which informed that the Saaremaa Shipping Company (SKL) had changed routes of ferries, resulting in the destruction of cheaper and faster ice roads connecting other islands. In two days this article got 185 comments. After six weeks the member of the supervisory board of SLK and the company’s shareholder L. had identified 20 comments containing personal threats and offensive language. His lawyers requested Delfi to remove the offensive comments and claimed around 32,000 EUR in compensation for non-pecuniary damage. Delfi on the same day removed the requested comments, but refused to pay the damages. For this reason L. brought a civil suit in Estonian courts, which found Delfi to be liable for the comments and ordered the company to pay 320 EUR for the non-pecuniary damage. Delfi was convinced that the conclusion made by Estonian courts about its liability for comments written by third parties was not right, and actually it violated Delfi's right to freedom of expression (i.e. freedom to publish third parties comments). For this reason Delfi turned to the ECHR which, unfortunately, on 10 October, 2013 took an unfavorable ruling, which was complemented by the Grand Chamber's ruling.

Why Delfi is liable for the third parties' comments?

The ECHR agreed with Estonian courts and concluded that Delfi is a publisher, rather than an internet service provider (ISP), for the following reasons:

• Delfi's activity was not of a merely technical, automatic and passive nature; instead, it actively invited users to add comments;
• Delfi earned revenue from advertisements published on the portal, which depended on the number of visits on it, thus Delfi had an economic interest in posting comments; even if Delfi was not the writer of the comments, it does not mean that it had no control over the comment environment.

What kind of comments did Delfi have to remove immediately?

The ECHR found the comments identified by L. to be constituting hate speech and speech that directly advocated acts of violence. These remarks were on their face manifestly unlawful as the establishment of their unlawful nature did not require any linguistic or legal analysis. It means that, according to the ruling, Delfi was obliged to remove only those comments which clearly and openly incited hatred and violence towards L. in a way obvious to any sensible reader.

The ECHR did not explain what "an obvious incitement to hatred or to violence" does mean and left the evaluation of such facts to national authorities. Nevertheless, it is worth noting that the comments were not identified as false or defaming information.

Why were the measures taken by Delfi found ineffective?

In 2006 Delfi used a disclaimer on its portal stating that the writers of the comments were accountable for them, and that the posting of comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities, was prohibited. Delfi also used an automatic system of deletion of comments based on stems of certain vulgar words and had a notice-and-take-down system in place, whereby anyone could notify the portal administrators if an inappropriate comment was published. In addition, on some occasions the administrators removed inappropriate comments on their own initiative, but this could not be done by comments' authors on their own.

The ECHR found that such measures were not sufficient because the automatic word-based filter failed to filter out odious hate speech and speech inciting violence posted by readers, and thus limited its ability to expeditiously remove the offending comments. The majority of the words and expressions identified by L. did not include sophisticated metaphors and did not contain hidden meanings or subtle threats. On the contrary, they were manifest expressions of hatred and blatant threats to the physical integrity of L., and as a consequence of the failure of the filtering mechanism, such clearly unlawful comments remained online for six weeks.

The ECHR stated that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments. Moreover, a victim of hate speech could not effectively bring a claim against the authors of the comments, therefore Delfi was obliged to remove the comments even without a notice from the alleged victims.

Is this ruling applicable to other Internet portals, such as social networks and blogs?

The Court has drawn the scope of the ruling explaining that this case does not concern other fora on the Internet, including Internet discussion forums, bulleting boards and social media platforms where the platform provider does not offer any content and where the content provider may be a private person running a website or a blog as a hobby. This means that, according to the ruling, a company such as Facebook could not be considered liable for the comments published by users.

Will this ruling restrict anonymous comments and is it in line with human rights standards?

The anonymity of comments was one of the main reasons for which Delfi resulted in being liable on the basis that the company had chosen "to allow comments by non-registered users, and by doing so, it had to be considered to have assumed a certain responsibility for such comments", even though in the same ruling the ECHR has stated that Internet users intend not to disclose their identity and that "anonymity has long been a means of avoiding reprisals or unwanted attention". A similar opinion was upheld by David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression: according to him, a possibility to share ideas on the Internet anonymously is essential for the implementation of the freedom of expression. In spite of these statements, the ECHR gave a higher level of protection to the defense of a person's honor and dignity rather than to anonymity.

While discussing the ruling in Lithuania, many ideas were expressed suggesting to allow comments only through Facebook profiles, to apply compulsory registration of commentators or to publish their IP addresses. It is worth to explain that when a comment is published through a Facebook account, the name of a person and his photo become public and both an Internet portal and Facebook can find out about a comment and an article which has been read, but not on all occasions a person's consent is given. Compulsory registration of commentators on an Internet portal means that a portal becomes a processor of personal data, able to easily monitor the activities of readers such as the articles they read and their reactions and ideas about them. Regarding the publication of IP addresses, one should be aware that the European Court of Justice in 2011 ruled that an IP address identifies a person and is considered to be personal data, thus it can be published only with a person's consent. Unfortunately, at the moment there are many Internet portals which publish all IP addresses of their commentators without informing them and getting their consent.

Can one use this ruling for defending his own rights in Lithuania?

The ECHR in the ruling has evaluated whether Estonian domestic law and court decisions were in line with the European Convention on Human Rights. The court has highlighted that in other countries various approaches are possible in legislation towards the new media, and these countries may have adopted slightly different rules implementing the EU Directive on Electronic Commerce; for this reason, the Court's ruling can only be applicable on a case-by-case basis.

In Lithuania the articles 14 and 15 of the Directive are directly transferred to the article 14 of the Law on the Information Society Services. So, according to the ruling, an Internet news portal which is ran on a commercial basis and gives a possibility to post comments may be recognised as a publisher liable for the comments by third parties. Nevertheless, the article 54.1.4 of the Lithuanian Law on the Provision of Information to the Public states that a publisher is exempted from the editorial responsibility, is not liable for misleading information and is not obliged to pay for damages, only if the information was published by users who are not related to the editor (i.e. commentators) and the information source is disclosed publicly. Accordingly, it means that the ruling may be applied in Lithuania to a limited extent.

How was the ruling criticised?

The ECHR judges András Sajó and Nona Tsotsoria have expressed their Dissenting Opinion of the ruling stating that "for the sake of preventing defamation of all kinds, and perhaps all 'illegal' activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst". It is clear that such censorship could have a chilling effect for honest media users willing to use their freedom of expression while expressing their opinion in comments or complementing the information published by journalists.

The judges also opposed to the Grand Chamber's opinion and stated that "the Internet is more than a uniquely dangerous novelty. It is a sphere of robust public discourse with novel opportunities for enhanced democracy. Comments are a crucial part of this new enhanced exchange of ideas among citizens. This has been the Court’s understanding so far in its case-law (Ashby Donald and Others v. Prancūzija,Węgrzynowski and Smolczewski v. Lenkija)“.

This article has been published in cooperation with the Human Rights Monitoring Institute, a Lithuanian NGO defending human rights.

Image courtesy of Dennis Skley, Flick.com

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