Intermediaries are liable for posting of unsolicited comments: Grand Chamber, ECHR [Read Jt]

In a major setback to the global demand for free speech, the Grand Chamber of the European Court (ECHR) has confirmed in Delfi AS v. Estonia (no.64569/09) news portal’s liability for comments made on its website. The case reached the doors of 17 judges of ECHR with 2 dissenting from the majority opinion after extensive litigation in the country itself. Notably, all litigation was disposed off within reasonable time till the international level! We are mentioning dates for our readers as it must be noted how quick juridical systems can be.The case concerns Delfi AS, the news portal, that was found liable by the Estonian courts for its failure to prevent unlawful comments from being published in its comments section, despite having taken down the offensive comments as soon as it had been notified about them. The case is related to application against the Republic of Estonia lodged with ECHR under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by Delfi AS, a public limited liability company registered in Estonia on 4/12/2009. The applicant company alleged that its freedom of expression had been violated, in breach of Article 10 of the Convention, by the fact that it had been held liable for the third-party comments posted on its Internet news portal.The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. It is also one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania. At the material time, at the end of the body of the news articles there were the words “add your comment” and fields for comments, the commenter’s name and his or her e-mail address (optional). Below these fields there were buttons labelled “publish the comment” and “read comments”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “read comments” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (an Estonian word for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, there was a system of automatic deletion of comments that included certain stems of obscene words. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi’s Internet site there were “Rules of comment” as well.On 24/1/2006 the applicant company published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “SLK” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language. On 9/3/2006 SLK’s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the twenty comments. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company. On 23/3/2006 the applicant company responded to the request from SLK’s lawyers. It informed them that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages.On 13/2/2006 SLK brought a civil suit in the Harju County Court against the applicant company. At the hearing of 28/5/2007 the representatives of the applicant company submitted, inter alia, that in earlier occasions cases like that of the “Bronze Night” Delfi had removed between 5,000 and 10,000 comments per day, also on its own initiative.By a judgment of 25/6/2007 SLK.’s claim was dismissed. The County Court found that the applicant company’s liability was excluded under the Information Society Services Act (Infoühiskonna teenuse seadus), which was based on the Directive on Electronic Commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market). The...

Intermediaries are liable for posting of unsolicited comments: Grand Chamber, ECHR [Read Jt]

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