ECHR: Websites are liable for comments written by its readers
The European Court of Human Rights (ECHR) has issued its ruling in the case of Delfi AS v. Estonia (application no. 64569/09). The Court found that the site is liable for the offensive and defamatory comments written by its readers. The applicant, Delfi AS, is a public limited company registered in Estonia. It 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 highly offensive or threatening posts about the ferry operator and its owner. At the request of the lawyers of the owner of the ferry company, Delfi removed the offensive comments about six weeks after their publication in March 2006. The owner of the ferry company 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. In particular, the Supreme Court rejected the portal’s argument that, under EU Directive 2000/31/EC on Electronic Commerce, its role as an information society service provider or storage host was merely technical, passive and neutral, finding that the portal exercised control over the publication of comments. Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, Delfi complains that the Estonian civil courts found it liable for comments written by its readers. The application was lodged with the European Court of Human Rights on 4 December 2009. 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. Delfi is 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. Delfi published up to 330 news articles a day at the time of the lodging of the application. In the case of Delfi AS v. Estonia the Grand Chamber held that there had been no violation of the Convention. This is the first time the Court has examined the liability of an Internet news portal for user-generated comments.
