By July 13, 2015 December 20th, 2019 No Comments

Given the
potential for widespread and permanent damage caused by Internet publication,
and given the difficulty in establishing the identity of posters of defamatory
comments, it is extremely difficult to expect third parties to assume the
burden of continual monitoring of the Internet. The decision rendered in Delfi
v. Estonia is of great significance to website publishers, in particular news
and other media organizations.
In January 2006, the applicant company, a leading Estonian news
portal, published an article discussing the implications of a shipping
company’s decision to move its ferries from one route to another and in doing
so breaking the ice at potential locations of ice roads. In the space of two
days, the article attracted 185 comments. About twenty of them contained
personal threats and offensive language against L, a member of the shipping
company’s supervisory board. Upon receipt of L’s complaint, the comments were
taken down without delay. However, L pursued the applicant company for damages
in relation to the intervening period of six weeks before the comments were
In June 2009, the Estonian Supreme Court upheld the lower court’s
finding that the applicant company was liable for the defamatory comments and
awarded L damages. It rejected the applicant company’s contention that it was
exempted from liability under the EU E-Commerce Directive (Directive
2000/31/EC) and the domestic legislation which implemented that Directive on
grounds that it had had neither knowledge of nor control over the information
being stored. By contrast, it decided that the applicant company exercised too
great a degree of control over comments on its website to avail itself of the
provisions as transported into Estonian law.
The applicant company had two general mechanisms in operation for
dealing with comments. Firstly, it had an automatic system of deletion of
comments based on stems of certain vulgar words. Secondly, it had a
notice-and-take-down system in place according to which anyone could notify it
of an inappropriate comment by simply clicking on a button designated for that
purpose. It also pro-actively moderated comments on controversial articles on
an occasional basis.
In its Chamber judgment of 10 October 2013 the Court held, unanimously, that there
had been no violation of Article 10 (freedom of expression) of the European
Convention. It found that the finding of liability by the Estonian courts had
been a justified and proportionate restriction on the portal’s right to freedom
of expression, in particular, because: the comments were highly offensive; the
portal had failed to prevent them from becoming public, profited from their
existence, but allowed their authors to remain anonymous; and, the fine imposed
by the Estonian courts had not been excessive.

The aforementioned
decision was then
referred to the Grand Chamber, pursuant to Article
43 of the ECHR.
The Grand Chamber of
the European Court of Human Rights handed down its judgment, finding no violation of Article 10
by the Applicant (website) that was held liable for third party defamatory
comments made by its users, despite the fact that the article itself was
balanced and contained no offensive language. The decision affirms the
rendered by the first section of the Court
 in 2013, which also held that there had not been a violation
of Delfi’s right to freedom of
expression, despite the fact that it had removed the comments as soon as it had
been notified of them.
The Grand Chamber
emphasised a number of factors that led it to rule that Delfi was
liable: the “extreme” nature of the comments which the court
considered to amount to hate speech, the fact that they were published on a
professionally-run and commercial news website, the insufficient measures taken
by Delfi to weed out the comments in question and the low likelihood of a
prosecution of the users who posted the comments, and the moderate sanction
imposed on Delfi.
The above ruling has
the capacity to challenge the safe harbor created for internet intermediaries
in certain situations and the intermediaries will now have to take greater

 ——– Shreya
Seth, Associate, Alpha Partners

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