In the case of Delfi AS v. Estonia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
64569/09) against the Republic of Estonia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by Delfi AS, a public limited company registered in
Estonia (“the applicant company”), on 4 December 2009.
The applicant company was represented by Mr V. Otsmann,
a lawyer practising in Tallinn. The Estonian Government (“the Government”) were
represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
The applicant company alleged that its freedom of
expression had been violated.
On 11 February 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
Written submissions were received from the
Helsinki Foundation for Human Rights in Warsaw, which had been granted leave by
the President to intervene as a third party (Article 36 § 2 of the Convention
and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant company is a
public limited company (aktsiaselts), registered in Estonia.
A. Background of the case
The applicant company is the owner of Delfi, an Internet
news portal that publishes up to 330 news articles a day. 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.
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 email address (optional). Below
these fields there were buttons “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
notify-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 were not its opinion and that the authors of comments were
responsible for their content. On Delfi’s Internet site there were “Rules of
comment” which included the following:
“The Delfi message board is a technical medium allowing users
to publish comments. Delfi does not edit comments. An author of a comment is liable
for his/her comment. It is worth noting that there have been cases in the
Estonian courts where authors have been punished for the contents of a comment ...
Delfi prohibits comments the content of which does not comply
with good practice.
These are comments that:
- contain threats;
- contain insults;
- incite hostility and violence;
- incite illegal activities ...
- contain obscene expressions and vulgarities ...
Delfi has the right to remove such comments and restrict their
authors’ access to the writing of comments ...”
The functioning of the notice-and-take-down system was also
explained in the text.
The Government submitted that in Estonia Delfi
had a notorious history of publishing defaming and degrading comments. Thus, on
22 September 2005 the weekly newspaper Eesti Ekspress had published
a public letter from the editorial board to the Minister of Justice, the Chief
Public Prosecutor and the Chancellor of Justice in which concern was expressed
about incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery.
B. Article and comments published on the Internet news
portal
On 24 January 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 company). SLK provides a public ferry transport service between the
mainland and some islands. L. was a member of the supervisory board of SLK and
the company’s sole or majority shareholder at the material time.
On 24 and 25 January 2006 the article attracted
185 comments. About twenty of them contained personal threats and offensive
language directed against L.
On 9 March 2006 L.’s lawyers requested the
applicant company to remove the offensive comments and claimed 500,000 kroons
(EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary
damage. The request concerned the following twenty comments:
“1. 1. there are currents in [V]äinameri
2. open water is closer to the places you referred to, and the
ice is thinner.
Proposal - let’s do as in 1905, let’s go to [K]uressaare with
sticks and put [L.] and [Le.] in bag
2. fucking shitheads...
they bath in money anyways thanks to that monopoly and State
subsidies and now started to fear that cars may drive to the islands for a
couple of days without anything filling their purses. burn in your own ship,
sick Jew!
3. good that [La.’s] initiative has not broken down
the lines of the web flamers. go ahead, guys, [L.] into oven!
4. [little L.] go and drown yourself
5. aha... [I] hardly believe that that [happened] by
accident... assholes fck
6. rascal!!! [in Russian]
7. What are you whining, kill this bastard once[.]
In the future the other ones ... will know what they will risk, even they will
only have one little life.
8. ... is [bloody] right. To be lynched, to warn the
other [islanders] and would-be men. Then nothing like that will be done again!
In any event, [L.] very much deserves that, doesn’t he.
9. “a good man lives [long,] a shitty man [a day or
two]”
10. If there was an iceroad, [one] could easily save
500 for a full car, fckng [L.] pay for that economy, why it takes 3 [hours] for
your ferries if they are so good icebreakers, go and break ice in Pärnu port
... instead, fcking monkey, I will pass [the strait] anyways and if I will
drown, it is your fault
11. and can’t anyone defy the shits?
12. [inhabitants of Saaremaa and Hiiumaa islands],
do 1:0 to this dope.
13. wonder whether [L.] won’t be trashed in Saaremaa? to screw one’s owns like that.
14. The people will chatter for a couple of days in
the Internet, but the crooks (and also those who are backed and whom we
ourselves have elected to represent us) pocket the money and pay no attention
to this flaming - no one gives a shit about this.
Once [M.] and other big crooks also used to boss around, but
their greed stroke back (RIP). Will also strike back to these crooks sooner or
later. As they sow, so shall they reap, but they should nevertheless be
contained (by lynching as the state is powerless in respect of them - it is
really them who govern the state), because they only live for today. Tomorrow,
the flood.
15. this [V.] will once get [a blow] from me with a
cake.
damn, as soon as you put a cauldron on the fire and there is
smoke rising from the chimney of the sauna, the crows from Saaremaa are there -
thinking that...a pig is going to be slaughtered. no way
16. bastards!!!! Ofelia also has an ice class, so
this is no excuse why Ola was required!!!
17. Estonian state, led by scum [and] financed by
scum, of course does not prevent or punish the antisocial acts of the scum. But
well, each [L.] has his Michaelmas... and this cannot at all be compared to a
ram’s Michaelmas. Actually sorry for [L.] - a human, after all... :D :D :D
18. ... if after such acts [L.] should all of a
sudden happen to be on sick leave and also in case of the next destruction of
the ice road... will he [then] dear to act like a pig for the third time? :)
19. fucking bastard, that [L.]... could have gone
home with my baby soon... anyways his company cannot guarantee a normal ferry
service and the prices are such that... real creep... a question arises whose
pockets and mouths he has filled up with money so that he’s acting like a pig
from year to year
20. can’t make bread from shit; and paper and
internet stand everything; and just for own fun (really the state and [L.] do
not care about the people’s opinion)... just for fun, with no greed for money -
I pee into the [L.’s] ear and then I also shit onto his head. :)”
On the same day the offensive comments were
removed by the applicant company.
On 23 March 2006 the applicant company responded
to the request from L.’s lawyers. It informed L. that the comments had been removed
under the notice-and-take-down obligation, and refused the claim for damages.
C. Civil proceedings against the applicant company
On 13 April 2006 L. brought a civil suit with
the Harju County Court against the applicant company.
At the hearing of 28 May 2007 the
representatives of the applicant company submitted, inter alia, that in
cases like the “Bronze Night” (public disorders related to the relocation of
the Bronze Soldier monument in April 2007) Delfi had removed 5,000-10,000
comments per day, also on its own initiative.
By a judgment of 25 June 2007 L.’s claim was
dismissed. The County Court found that the applicant company’s responsibility
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 court considered
that the comment environment in the applicant company’s news portal was to be
distinguished from the portal’s journalistic area. The administration of the
former by the applicant company was essentially of a mechanical and passive
nature. The applicant company could not be considered the publisher of the
comments, nor did it have any obligation to monitor them.
On 22 October 2007 the Tallinn Court of Appeal allowed
L.’s appeal. It considered that the County Court had erred in finding that the
applicant company’s responsibility was excluded under the Information Society
Services Act. The County Court’s judgment was quashed and the case referred
back to the first-instance court for new consideration.
On 21 January 2008 the Supreme Court declined to
hear the applicant company’s appeal.
On 27 June 2008 the Harju County Court, having re-examined
the case, found for L. In accordance with the Court of Appeal’s instructions it
relied on the Obligations Act (Võlaõigusseadus) and deemed the
Information Society Services Act inapplicable. It observed that the applicant
company had placed a note on its Internet site that comments were not edited,
that it was prohibited to post comments that were contrary to good practice,
and that the applicant company reserved to itself the right to remove such
comments. A system was put in place whereby users could notify the applicant
company of any inappropriate comments. However, the County Court considered
that this was insufficient and did not allow adequate protection for the
personality rights of others. The court found that the applicant company itself
was to be considered the publisher of the comments, and it could not avoid
responsibility by publishing a disclaimer that it was not liable for the
content of the comments.
The County Court found that the news article
itself published in the Delfi news portal was a balanced one. A number of
comments, however, were vulgar in form; they were humiliating and defamatory
and impaired L.’s honour, dignity and reputation. The comments went beyond
justified criticism and amounted to simple insults. The court concluded that
freedom of expression did not extend to protection of the comments concerned
and that L.’s personality rights had been violated. L. was awarded
EEK 5,000 (EUR 320) in non-pecuniary damages.
On 16 December 2008 the Tallinn Court of Appeal
upheld the County Court’s judgment. It emphasised that the applicant company
had not been required to exercise preliminary control over comments posted on
its news portal. However, having chosen not to do so, it should have created
some other effective system which would have ensured rapid removal of unlawful
comments from the portal. The Court of Appeal considered that the measures
taken by the applicant company were insufficient and that it was contrary to
the principle of good faith to place the burden of monitoring the comments on
their potential victims.
The Court of Appeal rejected the applicant
company’s argument that its responsibility was excluded on the basis of the
Information Society Services Act. It noted that the applicant company was not a
technical intermediary in respect of the comments, and that its activity was
not of a merely technical, automatic and passive nature; instead, it invited
users to add comments. Thus, the applicant company was a provider of content
services rather than of technical services.
On 10 June 2009 the Supreme Court dismissed the
applicant company’s appeal. It upheld the Court of Appeal’s judgment in
substance, but partly modified its reasoning.
The Supreme Court approved the lower courts’
interpretation of the Information Society Services Act, and reiterated that an
information society service provider, falling under that Act and the Directive
on Electronic Commerce, had neither knowledge of nor control over information
which was transmitted or stored. By contrast, a provider of content services
governed the content of information that was being stored. In the present case,
the applicant company had integrated the comment environment into its news
portal and invited users to post comments. The number of comments had an effect
on the number of visits to the portal and on the applicant company’s revenue
from advertisements published on the portal. Thus, the applicant company had an
economic interest in the comments. The fact that the applicant company did not
write the comments itself did not imply that it had no control over the comment
environment. It enacted the rules of comment and removed comments if the rules
were breached. The users, on the contrary, could not change or delete the
comments they had posted; they could merely report obscene comments. Thus, the
applicant company could determine which comments were published and which not.
The fact that it made no use of this possibility did not mean that it had no
control over the publishing of the comments.
Furthermore, the Supreme Court considered that
in the present case both the applicant company and the authors of the comments
were to be considered publishers of the comments. In this context, it also
referred to the economic interest of an internet portal’s administrator, which
made it a publisher as entrepreneur, similarly to a publisher of printed media.
The Supreme Court found that the plaintiff was free to choose against whom to
bring the suit, and L. had chosen to bring the suit against the applicant
company.
The Supreme Court found that on the basis of its
legal obligation to avoid causing damage to other persons the applicant company
should have prevented clearly unlawful comments from being published.
Furthermore, after the comments had been published, it had failed to remove
them on its own initiative, although it must have been aware of their
unlawfulness. The courts had rightly found that the applicant company’s failure
to act had been unlawful.
D. Subsequent developments
According to information posted on 1 October
2009 by Delfi on its Internet portal Delfi did not allow persons who had posted
offensive comments to post a new comment until the commenter had read and
accepted the rules of commenting. Furthermore, it was announced that Delfi had set
up a team of moderators who carried out follow-up moderation of comments posted
on the portal. First of all, the moderators reviewed all user notices of
inappropriate comments. The compliance of comments with the rules of commenting
was monitored as well. According to the information published, the number of
comments posted by Delfi’s readers in August 2009 had been 190,000. Delfi’s
moderators had removed 15,000 comments (about 8%), mainly consisting of spam or
irrelevant comments. The share of defamatory comments had been less than 0.5%
of the total number of comments.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) provides:
Article 17
“No one’s honour or good name shall be defamed.”
Article 19
“(1) Everyone has the right to free
self-realisation.
(2) Everyone shall honour and consider the rights
and freedoms of others, and shall observe the law in exercising his or her
rights and freedoms and in fulfilling his or her duties.”
Article 45
“(1) Everyone has the right to freely disseminate
ideas, opinions, beliefs and other information by word, print, picture or other
means. This right may be restricted by law to protect public order, morals, and
the rights and freedoms, health, honour and the good name of others. This right
may also be restricted by law for state and local government public servants,
to protect a state or business secret or information received in confidence,
which has become known to them by reason of their office, and the family and
private life of others, as well as in the interests of justice.
(2) There is to be no censorship.”
Section 138 of the Civil Code (General
Principles) Act (Tsiviilseadustiku üldosa seadus) provides that rights
shall be exercised and obligations performed in good faith. A right shall not
be exercised in an unlawful manner or with the aim of causing damage to another
person.
Paragraph 2 of section 134 of the Obligations
Act (Võlaõigusseadus) provides:
“In the case of an obligation to compensate for damage arising
from ... violation of a personality right, in particular from defamation, the
obligated person shall compensate the aggrieved person for non-pecuniary damage
only if this is justified by the gravity of the violation, in particular by
physical or emotional distress.”
Section 1043 of the Obligations Act provides
that a person (tortfeasor) who unlawfully causes damage to another person
(victim) shall compensate for the damage if the tortfeasor is culpable (süüdi)
of causing the damage or is liable (vastutab) for causing the damage
pursuant to law
Section 1045 of the Obligations Act stipulates
that the causing of damage is unlawful if, inter alia, the damage is
caused by violation of a personality right of the victim.
The Obligations Act
further provides:
Section 1046 - Unlawfulness of damage to personality rights
“(1) Defamation of a person, inter alia by
passing undue judgment, by the unjustified use of the name or image of the
person, or by breaching the inviolability of the private life or another
personality right of the person, is unlawful unless otherwise provided by law.
Upon the establishment of unlawfulness, the type of violation, the reason and
motive for the violation and the gravity of the violation relative to the aim
pursued thereby shall be taken into consideration.
(2) The violation of a personality right is not
unlawful if the violation is justified in view of other legal rights protected
by law and the rights of third parties or public interests. In such cases unlawfulness
shall be established on the basis of the comparative assessment of different
legal rights and interests protected by law.”
Section 1047 - Unlawfulness of disclosure of incorrect
information
“(1) Violation of personality rights or interference
with the economic or professional activities of a person by way of disclosure [avaldamine]
of incorrect information or by incomplete or misleading disclosure of
information concerning the person or the activities of the person, is unlawful
unless the person who discloses such information proves that, upon disclosure
thereof, the person was not aware and was not required to be aware that such
information was incorrect or incomplete.
(2) Disclosure of defamatory matters concerning a
person, or matters which may adversely affect the economic situation of a
person, is deemed to be unlawful unless the person who discloses such matters
proves that the statement he or she makes is true.
(3) Regardless of the provisions of subsections (1)
and (2) of this section, the disclosure of information or other matters is not
deemed to be unlawful if the person who discloses the information or other
matters or the person to whom such matters are disclosed has a legitimate
interest in the disclosure, and if the person who discloses the information has
checked the information or other matters with a thoroughness which corresponds
to the gravity of the potential violation.
(4) In the event of disclosure of incorrect information,
the victim may demand that the person who has disclosed such information refute
the information or publish a correction at their own expense, regardless of
whether the disclosure of the information was unlawful or not.”
Section 1055 - Prohibition on damaging actions
“(1) If unlawful damage is caused continually or a
threat is made that unlawful damage will be caused, the victim or the person
who is threatened has the right to demand that behaviour which causes damage be
terminated or the making of threats of such behaviour be refrained from. In the
event of bodily injury, damage to health, violation of inviolability of
personal life or any other personality rights, it may be demanded, inter
alia, that the tortfeasor be prohibited from approaching others
(restraining order), the use of housing or communication be regulated, or other
similar measures be applied.
(2) The right to demand that behaviour which causes
damage as specified in subsection (1) of this section be terminated does not
apply if it is reasonable to expect that such behaviour can be tolerated in
human coexistence or due to significant public interest. In such a case the
victim has the right to make a claim for compensation for damage caused
unlawfully ...”
The Information Society Services Act (Infoühiskonna
teenuse seadus) provides as follows:
Section 8 - Restricted liability upon mere transmission of
information and provision of access to public data communications network
“(1) Where a service is provided that consists of
the mere transmission in a public data communication network of information
provided by a recipient of the service, or the provision of access to a public
data communication network, the service provider is not liable for the
information transmitted, on condition that the provider:
1) does not initiate the transmission;
2) does not select the receiver of the transmission;
3) does not select or modify the information
contained in the transmission.
(2) The acts of transmission and of provision of
access within the meaning of paragraph 1 of this section include the
automatic, intermediate and transient storage of the information transmitted,
in so far as this takes place for the sole purpose of carrying out the
transmission in the public data communication network, and provided that the
information is not stored for any period longer than is reasonably necessary
for the transmission.”
Section 9 - Restricted liability upon temporary storage of
information in cache memory
“(1) Where a service is provided that consists of
the transmission in a public data communication network of information provided
by a recipient of the service, the service provider is not liable for the
automatic, intermediate and temporary storage of that information, if the
method of transmission concerned requires caching for technical reasons and the
caching is performed for the sole purpose of making more efficient the
information’s onward transmission to other recipients of the service at their
request, on condition that:
1) the provider does not modify the information;
2) the provider complies with conditions on access
to the information;
3) the provider complies with rules regarding the
updating of the information, specified in a manner widely recognised and used
in the industry;
4) the provider does not interfere with the lawful
use of technology which is widely recognised and used by the industry to obtain
data on the use of the information;
5) the provider acts expeditiously to remove or to
disable access to the information it has stored upon obtaining actual knowledge
of the fact that the information at the initial source of the transmission has
been removed from the network, or access to it has been disabled, or that a
court, the police or a state supervisory authority has ordered such removal.”
Section 10 - Restricted liability upon provision of
information storage service
“(1) Where a service is provided that consists of
the storage of information provided by a recipient of the service, the service
provider is not liable for the information stored at the request of a recipient
of the service, on condition that:
1) the provider does not have actual knowledge of
the contents of the information and, as regards claims for damages, is not
aware of facts or circumstances from which the illegal activity or information
is apparent;
2) the provider, upon obtaining knowledge or
awareness of the facts specified in subparagraph 1 of this paragraph, acts
expeditiously to remove or to disable access to the information.
(2) Paragraph 1 of this section shall not apply when
the recipient of the service is acting under the authority or the control of
the provider.”
Section 11 - No obligation to monitor
“(1) A service provider specified in sections 8 to
10 of this Act is not obliged to monitor information upon the mere transmission
thereof or provision of access thereto, temporary storage thereof in cache
memory or storage thereof at the request of the recipient of the service, nor
is the service provider obliged to actively seek information or circumstances
indicating illegal activity.
(2) The provisions of paragraph 1 of this section do
not restrict the right of an official exercising supervision to request the
disclosure of such information by a service provider.
(3) Service providers are required to promptly
inform the competent supervisory authorities of alleged illegal activities
undertaken or information provided by recipients of their services specified in
sections 8 to 10 of this Act, and to communicate to the competent authorities information
enabling the identification of recipients of their service with whom they have
storage agreements.”
In a judgment of 21
December 2005 (case no. 3-2-1-95-05) the Supreme Court found that, for the
purposes of section 1047 of the Obligations Act, disclosure [avaldamine]
meant disclosure of information to third parties. A person who transmitted
information to a media publisher [meediaväljaanne] could be considered a
discloser [avaldaja] even if he or she was not the publisher of the article
[ajaleheartikli avaldaja] in question. The Supreme Court has reiterated
the same position in its subsequent judgments, for example in a judgment of 21
December 2010 (case no. 3-2-1-67-10).
In a number of domestic
cases actions for defamation have been brought against several defendants,
including, for example, a publisher of a newspaper and the author of an article
(the Supreme Court’s judgment of 7 May 1998 in case no. 3-2-1-61-98), a
publisher of a newspaper and an interviewee (the Supreme Court’s judgment of 1
December 1997 in case no. 3-2-1-99-97), and solely against a publisher of
a newspaper (the Supreme Court’s judgment of 30 October 1997 in case no. 3-2-1-123-97,
and a judgment of 10 October 2007 in case no. 3-2-1-53-07).
III. RELEVANT INTERNATIONAL MATERIAL
A. Council of Europe documents
On 28 May 2003 the Committee of Ministers of the
Council of Europe adopted, at the 840th meeting of the Ministers’ Deputies, the
Declaration on freedom of communication on the Internet. It reads in the
relevant part as follows:
“The member states of the Council of Europe ...Convinced also
that it is necessary to limit the liability of service providers when they act
as mere transmitters, or when they, in good faith, provide access to, or host,
content from third parties;
Recalling in this respect 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 (Directive on electronic commerce);
Stressing that freedom of communication on the Internet should
not prejudice the human dignity, human rights and fundamental freedoms of
others, especially minors;
Considering that a balance has to be found between respecting
the will of users of the Internet not to disclose their identity and the need
for law enforcement authorities to trace those responsible for criminal acts ...”
Principle 1: Content rules for the Internet
“Member states should not subject content on the Internet to
restrictions which go further than those applied to other means of content
delivery.”
Principle 3: Absence of prior state control
“Public authorities should not, through general blocking or
filtering measures, deny access by the public to information and other
communication on the Internet, regardless of frontiers. This does not prevent
the installation of filters for the protection of minors, in particular in places
accessible to them, such as schools or libraries.
Provided that the safeguards of Article 10, paragraph 2, of the
Convention for the Protection of Human Rights and Fundamental Freedoms are
respected, measures may be taken to enforce the removal of clearly identifiable
Internet content or, alternatively, the blockage of access to it, if the
competent national authorities have taken a provisional or final decision on
its illegality.”
Principle 6: Limited liability of service providers for
Internet content
“Member states should not impose on service providers a general
obligation to monitor content on the Internet to which they give access, that
they transmit or store, nor that of actively seeking facts or circumstances
indicating illegal activity.
Member states should ensure that service providers are not held
liable for content on the Internet when their function is limited, as defined
by national law, to transmitting information or providing access to the
Internet.
In cases where the functions of service providers are wider and
they store content emanating from other parties, member states may hold them
co-responsible if they do not act expeditiously to remove or disable access to
information or services as soon as they become aware, as defined by national law,
of their illegal nature or, in the event of a claim for damages, of facts or
circumstances revealing the illegality of the activity or information.
When defining under national law the obligations of service
providers as set out in the previous paragraph, due care must be taken to
respect the freedom of expression of those who made the information available
in the first place, as well as the corresponding right of users to the
information.
In all cases, the above-mentioned limitations of liability
should not affect the possibility of issuing injunctions where service
providers are required to terminate or prevent, to the extent possible, an
infringement of the law.”
Principle 7: Anonymity
“In order to ensure protection against online surveillance and
to enhance the free expression of information and ideas, member states should
respect the will of users of the Internet not to disclose their identity. This
does not prevent member states from taking measures and co-operating in order
to trace those responsible for criminal acts, in accordance with national law,
the Convention for the Protection of Human Rights and Fundamental Freedoms and
other international agreements in the fields of justice and the police.”
B. European Union documents
1. Directive 2000/31/EC
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
(Directive on electronic commerce) provides as follows:
“... (9) The free movement of information society
services can in many cases be a specific reflection in Community law of a more
general principle, namely freedom of expression as enshrined in Article 10(1)
of the Convention for the Protection of Human Rights and Fundamental Freedoms,
which has been ratified by all the Member States; for this reason, directives
covering the supply of information society services must ensure that this
activity may be engaged in freely in the light of that Article, subject only to
the restrictions laid down in paragraph 2 of that Article and in Article 46(1)
of the Treaty; this Directive is not intended to affect national fundamental
rules and principles relating to freedom of expression ...
(42) The exemptions from liability established in
this Directive cover only cases where the activity of the information society
service provider is limited to the technical process of operating and giving
access to a communication network over which information made available by
third parties is transmitted or temporarily stored, for the sole purpose of
making the transmission more efficient; this activity is of a mere technical,
automatic and passive nature, which implies that the information society
service provider has neither knowledge of nor control over the information
which is transmitted or stored.
(43) A service provider can benefit from the
exemptions for “mere conduit” and for “caching” when he is in no way involved
with the information transmitted; this requires among other things that he does
not modify the information that he transmits; this requirement does not cover
manipulations of a technical nature which take place in the course of the
transmission as they do not alter the integrity of the information contained in
the transmission.
(44) A service provider who deliberately
collaborates with one of the recipients of his service in order to undertake
illegal acts goes beyond the activities of “mere conduit” or “caching” and as a
result cannot benefit from the liability exemptions established for these
activities.
(45) The limitations of the liability of
intermediary service providers established in this Directive do not affect the
possibility of injunctions of different kinds; such injunctions can in
particular consist of orders by courts or administrative authorities requiring
the termination or prevention of any infringement, including the removal of
illegal information or the disabling of access to it.
(46) In order to benefit from a limitation of
liability, the provider of an information society service, consisting of the
storage of information, upon obtaining actual knowledge or awareness of illegal
activities has to act expeditiously to remove or to disable access to the
information concerned; the removal or disabling of access has to be undertaken
in the observance of the principle of freedom of expression and of procedures
established for this purpose at national level; this Directive does not affect
Member States’ possibility of establishing specific requirements which must be
fulfilled expeditiously prior to the removal or disabling of information.
(47) Member States are prevented from imposing a
monitoring obligation on service providers only with respect to obligations of
a general nature; this does not concern monitoring obligations in a specific
case and, in particular, does not affect orders by national authorities in
accordance with national legislation.
(48) This Directive does not affect the possibility
for Member States of requiring service providers, who host information provided
by recipients of their service, to apply duties of care, which can reasonably
be expected from them and which are specified by national law, in order to
detect and prevent certain types of illegal activities. ...”
Article 1 - Objective and scope
“1. This Directive seeks to contribute to the proper
functioning of the internal market by ensuring the free movement of information
society services between the Member States ...”
Article 2 - Definitions
“For the purpose of this Directive, the following terms shall
bear the following meanings:
(a) “information society services”: services within
the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive
98/48/EC;
(b) “service provider”: any natural or legal person
providing an information society service;
(c) “established service provider”: a service
provider who effectively pursues an economic activity using a fixed
establishment for an indefinite period. The presence and use of the technical
means and technologies required to provide the service do not, in themselves,
constitute an establishment of the provider ...”
Section 4: Liability of intermediary service providers
Article 12 - “Mere conduit”
“1. Where an information society service is provided
that consists of the transmission in a communication network of information
provided by a recipient of the service, or the provision of access to a
communication network, Member States shall ensure that the service provider is
not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the
transmission; and
(c) does not select or modify the information
contained in the transmission.
2. The acts of transmission and of provision of
access referred to in paragraph 1 include the automatic, intermediate and
transient storage of the information transmitted in so far as this takes place
for the sole purpose of carrying out the transmission in the communication
network, and provided that the information is not stored for any period longer
than is reasonably necessary for the transmission.
3. This Article shall not affect the possibility for
a court or administrative authority, in accordance with Member States’ legal
systems, of requiring the service provider to terminate or prevent an
infringement.”
Article 13 - “Caching”
“1. Where an information society service is provided
that consists of the transmission in a communication network of information
provided by a recipient of the service, Member States shall ensure that the
service provider is not liable for the automatic, intermediate and temporary
storage of that information, performed for the sole purpose of making more
efficient the information’s onward transmission to other recipients of the
service upon their request, on condition that:
(a) the provider does not modify the information;
(b) the provider complies with conditions on access
to the information;
(c) the provider complies with rules regarding the
updating of the information, specified in a manner widely recognised and used
by industry;
(d) the provider does not interfere with the lawful
use of technology, widely recognised and used by industry, to obtain data on
the use of the information; and
(e) the provider acts expeditiously to remove or to
disable access to the information it has stored upon obtaining actual knowledge
of the fact that the information at the initial source of the transmission has
been removed from the network, or access to it has been disabled, or that a
court or an administrative authority has ordered such removal or disablement.
2. This Article shall not affect the possibility for
a court or administrative authority, in accordance with Member States’ legal
systems, of requiring the service provider to terminate or prevent an
infringement.”
Article 14 - Hosting
“1. Where an information society service is provided
that consists of the storage of information provided by a recipient of the
service, Member States shall ensure that the service provider is not liable for
the information stored at the request of a recipient of the service, on
condition that:
(a) the provider does not have actual knowledge of
illegal activity or information and, as regards claims for damages, is not
aware of facts or circumstances from which the illegal activity or information
is apparent; or
(b) the provider, upon obtaining such knowledge or
awareness, acts expeditiously to remove or to disable access to the
information.
2. Paragraph 1 shall not apply when the recipient of
the service is acting under the authority or the control of the provider.
3. This Article shall not affect the possibility for
a court or administrative authority, in accordance with Member States’ legal
systems, of requiring the service provider to terminate or prevent an
infringement, nor does it affect the possibility for Member States of
establishing procedures governing the removal or disabling of access to information.”
Article 15 - No general obligation to monitor
“1. Member States shall not impose a general
obligation on providers, when providing the services covered by Articles 12, 13
and 14, to monitor the information which they transmit or store, nor a general
obligation actively to seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for
information society service providers promptly to inform the competent public
authorities of alleged illegal activities undertaken or information provided by
recipients of their service or obligations to communicate to the competent
authorities, at their request, information enabling the identification of
recipients of their service with whom they have storage agreements.”
2. Directive 98/34/EC as amended by Directive 98/48/EC
Directive 98/34/EC of the European Parliament
and of the Council of 22 June 1998 laying down a procedure for the provision of
information in the field of technical standards and regulations and of rules on
Information Society services, as amended by Directive 98/48/EC, provides as
follows:
Article 1
“For the purposes of this Directive, the following meanings
shall apply ...
2. ’service’, any Information Society service, that is
to say, any service normally provided for remuneration, at a distance, by
electronic means and at the individual request of a recipient of services.
For the purposes of this definition:
- ’at a distance’ means that the service is provided
without the parties being simultaneously present,
- ’by electronic means’ means that the service is
sent initially and received at its destination by means of electronic equipment
for the processing (including digital compression) and storage of data, and
entirely transmitted, conveyed and received by wire, by radio, by optical means
or by other electromagnetic means,
- ’at the individual request of a recipient of
services’ means that the service is provided through the transmission of data
on individual request.
An indicative list of services not covered by this definition
is set out in Annex V.
This Directive shall not apply to:
- radio broadcasting services,
- television broadcasting services covered by point
(a) of Article 1 of Directive 89/552/EEC.”
3. Case-law of the Court of Justice of the European
Union
In a judgment of 23 March 2010 (Joined Cases C-236/08
to C-238/08 Google France and Google [2010] ECR I-2417) the
Court of Justice of the European Union considered that in order to establish
whether the liability of a referencing service provider may be limited under
Article 14 of Directive 2000/31, it is necessary to examine whether the
role played by that service provider is neutral, in the sense that its conduct
is merely technical, automatic and passive, pointing to a lack of knowledge or
control of the data which it stores. Article 14 of the Directive on electronic
commerce must be interpreted as meaning that the rule laid down therein applies
to an internet referencing service provider in the event that that service
provider has not played an active role of such a kind as to give it knowledge
of, or control over, the data stored. If it has not played such a role, that
service provider cannot be held liable for the data which it has stored at the
request of an advertiser, unless, having obtained knowledge of the unlawful
nature of those data or of that advertiser’s activities, it failed to act
expeditiously to remove or to disable access to the data concerned
In a judgment of 12 July 2011 (Case C-324/09
L’Oréal and Others [2011]) the Court of Justice of the European Union ruled
that Article 14(1) of Directive 2000/31 was to be interpreted as applying to
the operator of an online marketplace where that operator had not played an
active role allowing it to have knowledge or control of the data stored. The
operator played such a role when it provided assistance which entailed, in
particular, optimising the presentation of the offers for sale in question or promoting
them. Where the operator of the online marketplace had not played such an
active role and the service provided fell, as a consequence, within the scope
of Article 14(1) of Directive 2000/31, the operator none the less could not, in
a case which could result in an order to pay damages, rely on the exemption
from liability provided for under that Article if it had been aware of facts or
circumstances on the basis of which a diligent economic operator should have
realised that the offers for sale in question had been unlawful and, in the
event of it being so aware, had failed to act expeditiously in accordance with
Article 14(1)(b) of Directive 2000/31.
In a judgment of 24 November 2011 (Case C-70/10 Scarlet
Extended [2011]) the Court of Justice of the European Union ruled that an injunction
may not be made against an Internet service provider which required it to
install a system for filtering all electronic communications passing via its
services, in particular those involving the use of peer-to-peer software, which
applied indiscriminately to all its customers, as a preventive measure,
exclusively at its expense and for an unlimited period, which was capable of
identifying on that provider’s network the movement of electronic files
containing a musical, cinematographic or audiovisual work in respect of which
the applicant claimed to hold intellectual property rights, with a view to
blocking the transfer of files the sharing of which would infringe copyright.
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The applicant complained that holding it liable
for the comments posted by the readers of its Internet news portal infringed
its freedom of expression as provided in Article 10 of the Convention, which
reads as follows:
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless
of frontiers. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
The Government contested that argument.
A. Admissibility
The Government pointed out
that according to the applicant company it had been neither the author nor the
discloser of the defamatory comments. The Government noted that if the Court
shared that view, the application was incompatible ratione materiae with
the provisions of the Convention, as the Convention did not protect the freedom
of expression of a person who was neither the author nor the discloser. The
applicant company could not claim to be a victim of a violation of the freedom
of expression of persons whose comments had been deleted. Nevertheless, the
Government were of the opinion that in fact the applicant company was the
discloser of the defamatory comments.
The applicant company disagreed.
It contended that the obligation imposed on it to maintain a preventive
censorship policy over the exercise of freedom of expression of third persons
also infringed its freedom of expression, that is freedom to impart information
created and published by third persons.
The Court notes that the
applicant company was sued for defamation in respect of comments posted on its Internet
portal, it was deemed to be discloser (or publisher - the Estonian words avaldama/avaldaja
mean both disclose/discloser and publish/publisher; see, for example,
paragraphs 36 and 38 above) of the comments - along with their authors - and
held liable for its failure to prevent the disclosure of or remove on its own
initiative the unlawful comments. It was obliged by the domestic courts to pay
the plaintiff compensation for non-pecuniary damage he had sustained. Thus, the
applicant company was directly affected by the domestic courts’ decisions. The
Court considers that the applicant company’s grievance relates to freedom of
expression and falls within the scope of Article 10 of the Convention.
Therefore, the Government’s objection has to be dismissed.
The Court further notes that the application is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. Nor is it inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant company argued that the domestic
courts had interfered with its freedom of expression (right to impart
information). It submitted that it had been forced to alter its business model
completely and compelled to monitor every comment posted on its news portal -
up to 10,000 comments a day. Although certain technical and manual procedures
had already been applied prior to the Supreme Court’s judgment, the scope of
that activity and its legal implications had substantially changed as a result
of the judgment concerned.
The applicant company argued that the
interference with its freedom of expression had not been “prescribed by law”. It
argued that the civil law provisions relied on by the Supreme Court embodied a
negative obligation not to publish defamatory information. In the applicant
company’s view there was no obligation in the domestic law for it to pre-monitor
all the content posted by third persons. The domestic courts’ interpretation of
the pertinent legislation had not met the requirement of foreseeability. The
applicant company further argued that the liability of service providers for
the disclosure of third party content was limited under the EU Directive on
Electronic Commerce transposed into the Estonian legal order as the Information
Society Services Act.
The applicant company accepted that the
reputation and rights of L. had been engaged in the present case. However, it
considered that the authors of the comments were liable for the possible
infringement of L.’s rights. Holding the applicant company liable pursued no
legitimate aim.
The applicant company argued that the
restriction imposed on its freedom of expression was not necessary in a
democratic society. It noted that the article published by it had been a
balanced one, and thus the comments created and published by the commentators
had not been provoked or triggered by the deeds of the applicant company. It argued
that it was sufficient that the personal rights of individuals were protected by
a two-limb system - firstly by the notice-and-take-down system operated by the
service provider, and secondly by the possibility of bringing a claim against
the authors of the comments.
Referring to the cases of Google France and
Google and L’Oréal and Others of the Court of Justice of the
European Union, the applicant company argued that it had not played an “active
role” but had merely stored comments on its server, set the terms of its
service, been (indirectly) remunerated for that service and provided general
information to its customers (readers, commentators).
The applicant company further referred to the
Declaration and Article 15 of the Directive on Electronic Commerce, and argued
that a host was not obliged to seek or monitor the hosted material. Such an
overly burdensome obligation was contrary to freedom of expression and
information. The fact that the applicant company had acted diligently and
implemented various technical and manual procedures to reduce the number of
illegal comments from the comments area of its portal should not mean that it was
liable for illegal content posted by third parties. Otherwise, hosts who took
no measures whatsoever to eliminate illegal material would be encouraged, and
diligent hosts punished.
In conclusion, the applicant company asserted
that it had only played a passive role in hosting the comments; it had had no
active knowledge of the illicit comments, nor had it been or should have been
aware of the illicit comments before the relevant notice by L., after which the
applicant company had promptly removed the comments. Thus, the applicant
company had acted in accordance with the standards to be observed by a diligent
economic operator, and its freedom to impart information via the commenting
area of its news portal had been disproportionately interfered with.
(b) The Government
The Government submitted that Delfi continued to
be one of the largest Internet portals in Estonia. The articles published by it
were commented on extensively and people could do so without identifying
themselves. Thus, the Government rejected the applicant company’s argument that
it had had to change its business model. Furthermore, the Government pointed
out that the applicant company had also admitted monitoring comments on its own
initiative on some occasions even before the proceedings giving rise to the
present application.
The Government argued that the obligation to
avoid causing harm had a clear basis in law and was confirmed by comprehensive
case-law (see paragraphs 31 to 39 above). A media publication was usually
liable for what it published, and its liability could not be precluded by a
disclaimer published by the applicant company, as pursuant to the Obligations
Act an agreement which precluded or restricted liability for damage caused
unlawfully was void. Pursuant to the domestic law authors and owners of media
publications had joint and several liability.
The Government maintained that since the
publication of comments was under the control of the applicant company and in
practice Delfi also exercised partial control, it was obliged to protect the
honour of other persons, and the restriction concerned had a legitimate aim
with regard to the applicant company.
The Government contended that the restriction
was necessary in a democratic society. The vulgar, insulting and degrading
value judgments contained in the comments in the present case had had no
reasonable factual basis. There was therefore nothing in the comments which
would have required the portal administrator to do any work to check their
veracity. Since Delfi had not removed the posted comments on its own
initiative, and it must have been aware that they were unlawful, the Estonian
courts had justly found that Delfi’s omission was unlawful. The disclaimer
stating that the comments were not the opinion of the applicant company and
that the authors of comments were responsible for their content did not
preclude the applicant company’s liability.
The Government argued that placing the
obligation to monitor the comments and notify the portal administrator of
offensive comments on the possibly injured parties was neither sufficient nor
justified. Such a system did not ensure sufficient protection of the rights of
third parties, as proven by the circumstances of the present case. Any
information communicated via the Internet spread so quickly that by the time
the inappropriate comments were finally deleted the public interest in the
given news and the comments posted on it had waned. Measures taken weeks or
even days later for protecting a person’s honour were no longer sufficient,
because offensive or unlawful comments had already reached the public and done
their damage. Since controlling the Internet was an impossible task for an
ordinary person, the party with control over a specific portal had the duty to
take action where necessary to prevent violation of personality rights.
The Government noted that Estonia had chosen to apply less restrictive civil - as opposed to criminal - liability in
defamation cases. However, even if a court adjudicating a civil case was able
to identify the IP address of a computer and the address where the computer was
located, it was extremely difficult to identify the person who actually wrote
the comment. Thus, as Delfi did not identify the commentators, this made it too
difficult for an injured person to have recourse to the civil courts against
anonymous authors of comments. Furthermore, the Government considered that the
State’s enacting of a regulation providing for mandatory identification of
commentators on an Internet portal would constitute an excessive interference. Thus,
it was more suitable and proportionate in civil proceedings to place greater
liability (joint and several) for defamation on a portal owner who provided
content services. The Government pointed out in this context that Delfi was a
profit-oriented company which had invited visitors to its portal to comment on its
articles without identifying the authors of the comments. At the same time the
income it earned depended on the advertisements published on the portal, which,
in turn, depended on the number of comments. The Government referred to the
domestic courts’ finding that Delfi had not acted with the due diligence
required in commerce - it had not taken measures which would have precluded the
risk of violation of other persons’ rights. At the same time, the domestic
courts had not prescribed to Delfi how it should perform its duties, leaving
this matter for the applicant company and considering that there were various means
of doing this.
The Government argued that the applicant company
was not a hosting service provider for the purposes of the Information Society
Services Act when publishing comments posted on Delfi’s articles. A hosting
service provider offered merely a data storage service, while the stored data,
their insertion, removal and content (including ability to remove or change the
stored data) remained under the control of service users. In the Delfi commenting
environment those commenting lost control of their comments as soon as they had
entered them, and commenters could not change or delete their comments. Thus,
Delfi was not a technical intermediary in respect of comments, but a content
service provider. It deleted and modified comments if needed, and had also done
so prior to the Supreme Court’s judgment, playing therefore an active role of
such a kind as to give it knowledge of, or control over, the data relating to
the comments to its articles. The fact that Delfi had taken measures to minimise
insulting comments, for example by screening, demonstrated that Delfi had actually
been aware of its liability.
The Government also pointed out that the
comments in question had not attacked the public limited company concerned, but
a member of its supervisory board personally, and could not therefore be
justified by the exercise by the press of its role of a “public watchdog”. The
comments had resorted to offensive and intemperate language and had gone beyond
a generally acceptable degree of exaggeration or provocation; they had not
stimulated any reasonable public discussion.
Lastly, the Government considered that the sum
the applicant company had been ordered to pay L. as compensation for
non-pecuniary damage (corresponding to EUR 320) had not had a “chilling effect”
on the freedom of expression.
2. The third-party intervener’s arguments
The Helsinki Foundation for Human Rights in Warsaw provided an analysis of the Polish law concerning the liability related to publication
of materials on the Internet. It noted that Polish case-law was inconsistent.
In some cases news portals had not been held responsible for comments posted by
the readers, in other cases blog-owners or forum administrators had been held
responsible for third-party comments. The Helsinki Foundation reiterated that
prior restraint was a particularly restrictive measure, and it also indicated a
variety of problems related to the notice-and-take-down procedure which called
for more precise regulation.
3. The Court’s assessment
(a) Existence of an interference
The Court notes that the focus of the parties’
arguments differed as regards the applicant company’s role in the present case.
The Government were of the opinion that the applicant company was to be
considered the discloser of the defamatory comments, whereas the applicant
company considered that the comments had been published by third parties and
the applicant company’s freedom to impart information had been interfered with
(see paragraphs 48 and 49 above). Regardless of the exact role to be attributed
to the applicant company’s activities, it is not, in substance, in dispute
between the parties that the domestic courts’ decisions in respect of the
applicant company constituted an interference with its freedom of expression
guaranteed under Article 10 of the Convention. The Court sees no reason to hold
otherwise (see also paragraph 50 above).
Such an interference with the applicant company’s
right to freedom of expression must be “prescribed by law”, have one or more
legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in
a democratic society”.
(b) Lawfulness
The Court reiterates that a norm cannot be regarded as a “law” within the
meaning of Article 10 § 2 unless it is formulated with sufficient precision to
enable the citizen to regulate his conduct; he must be able - if need be with
appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail. Those
consequences need not be foreseeable with absolute certainty. Whilst certainty
is desirable, it may bring in its train excessive rigidity, and the law must be
able to keep pace with changing circumstances. Accordingly, many laws are
inevitably couched in terms which, to a greater or lesser extent, are vague,
and whose interpretation and application are questions of practice (see, for
example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos.
21279/02 and 36448/02, § 41, ECHR 2007-IV)
The Court further reiterates that the scope of the notion of foreseeability
depends to a considerable degree on the content of the text in issue, the field
it is designed to cover, and the number and status of those to whom it is
addressed. A law may still satisfy the requirement of foreseeability even if
the person concerned has to take appropriate legal advice to assess, to a
degree that is reasonable in the circumstances, the consequences which a given
action may entail. This is particularly true in relation to persons carrying on
a professional activity, who are used to having to proceed with a high degree
of caution when pursuing their occupation. They can on this account be expected
to take special care in assessing the risks that such activity entails (see Lindon,
Otchakovsky-Laurens and July, loc. cit., with further references to Cantoni
v. France, 15 November 1996, § 35, Reports of Judgments and Decisions
1996-V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45,
ECHR 2004-VI).
The Court notes that in the present case the
parties’ opinions differed as to the question whether the interference with the
applicant company’s freedom of expression was “prescribed by law”. The
applicant company argued that the domestic law did not entail a positive
obligation to pre-monitor content posted by third persons, and that its
liability was limited under the EU Directive on Electronic Commerce. The
Government referred to the pertinent provisions of the civil law and domestic case-law,
under which media publications were liable for their publications along with
the authors.
As regards the applicant company’s argument that
its liability was limited under the EU Directive on Electronic Commerce and the
Information Society Services Act, the Court notes that the domestic courts
found that the applicant company’s activities did not fall within the scope of
these acts. The Court reiterates in this context that it is not its task to
take the place of the domestic courts. It is primarily for the national
authorities, notably the courts, to resolve problems of interpretation of
domestic legislation. The Court’s role is confined to ascertaining whether the
effects of such an interpretation are compatible with the Convention (see,
among others, Pérez de Rada Cavanilles v. Spain, 28 October 1998,
§ 43, Reports of Judgments and Decisions 1998-VIII).
The Court further notes that pursuant to the
pertinent provisions of the Constitution, the Civil Code (General Principles)
Act and the Obligations Act (see paragraphs 31 to 36 above), as interpreted and
applied by the domestic courts, the applicant company was deemed liable for the
publication of the defamatory comments. Although these provisions are quite
general and lack detail in comparison with, for example, the Information
Society Services Act (see paragraph 37 above), the Court is satisfied that they,
along with the pertinent case-law, made it clear that a media publisher was liable
for any defamatory statements made in its media publication. The fact that in
the present case publication of articles and comments on an Internet portal was
also found to amount to journalistic activity and the administrator of the
portal as an entrepreneur was deemed to be a publisher can be seen, in the
Court’s view, as application of the existing tort law to a novel area related
to new technologies (compare, for example, Bernh Larsen Holding AS and
Others v. Norway, no. 24117/08, § 126,
14 March 2013, where the Court saw no reason to question the domestic
court’s interpretation, according to which legal provisions originally
conceived in respect of hard copies of documents were also deemed to apply to
electronically stored documents). This does not mean that the provisions
of the civil law in question did not constitute a sufficiently clear legal
basis for the applicant company’s liability, or that gradual clarification of
legal rules was outlawed (compare, mutatis mutandis, Radio France and
Others v. France, no. 53984/00, §§ 20 and 30, ECHR 2004-II). Indeed,
general provisions of law can at times make for a better adaptation to changing
circumstances than can attempts at detailed regulation (see, for comparison, Times
Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, §§ 20, 21 and 38,
ECHR 2009, where the “Internet publication rule” relied on a rule originally
dating from the year 1849, and Editorial Board of Pravoye Delo and
Shtekel v. Ukraine, no. 33014/05, §§ 60-68, ECHR 2011 (extracts),
where the lack of reference to Internet publications in the otherwise quite detailed
media law gave rise to an issue of lawfulness under Article 10 of the
Convention).
The Court accordingly finds that, as a
professional publisher, the applicant company must at least have been familiar
with the legislation and case-law, and could also have sought legal advice. The
Court observes in this context that the Delfi news portal is one of the largest
in Estonia, and also that a degree of notoriety has been attributable to comments
posted in its commenting area. Thus, the Court considers that the applicant
company was in a position to assess the risks related to its activities and
that it must have been able to foresee, to a reasonable degree, the
consequences which these could entail. It therefore finds that the interference
in issue was “prescribed by law” within the meaning of the second paragraph of
Article 10 of the Convention.
(c) Legitimate aim
The Court considers that the restriction of the
applicant company’s freedom of expression pursued a legitimate aim of
protecting the reputation and rights of others. The Court has taken note of the
applicant company’s argument about the liability of the actual authors of the
comments. However, in the Court’s view the fact that the actual authors were
also in principle liable does not remove the legitimate aim of holding the
applicant company liable for any damage to the reputation and rights of others.
The question of whether the applicant company’s rights under Article 10 were
excessively restricted in the present case by holding it liable for comments
written by third parties is a question of whether the restriction was
“necessary in a democratic society”, to be dealt with below.
(d) Necessary in a democratic society
(i) General principles
The fundamental principles concerning the
question whether an interference with freedom of expression is “necessary in a
democratic society” are well established in the Court’s case-law and have been
summarised as follows (see, among other authorities, Hertel v. Switzerland,
25 August 1998, § 46, Reports of Judgments and Decisions 1998-VI; Steel
and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005-II; Mouvement
raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)); and Animal Defenders International v.
the United Kingdom [GC], no. 48876/08,
§ 100, 22 April 2013:
“(i) Freedom of expression constitutes one of the
essential foundations of a democratic society and one of the basic conditions
for its progress and for each individual’s self-fulfilment. Subject to
paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’
that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such are the
demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic
society’. As set forth in Article 10, this freedom is subject to exceptions,
which ... must, however, be construed strictly, and the need for any
restrictions must be established convincingly ...
(ii) The adjective ‘necessary’, within the meaning
of Article 10 § 2, implies the existence of a ‘pressing social need’. The
Contracting States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European supervision,
embracing both the legislation and the decisions applying it, even those given
by an independent court. The Court is therefore empowered to give the final
ruling on whether a ‘restriction’ is reconcilable with freedom of expression as
protected by Article 10.
(iii) The Court’s task, in exercising its supervisory
jurisdiction, is not to take the place of the competent national authorities
but rather to review under Article 10 the decisions they delivered pursuant to
their power of appreciation. This does not mean that the supervision is limited
to ascertaining whether the respondent State exercised its discretion
reasonably, carefully and in good faith; what the Court has to do is to look at
the interference complained of in the light of the case as a whole and
determine whether it was ‘proportionate to the legitimate aim pursued’ and
whether the reasons adduced by the national authorities to justify it are ‘relevant
and sufficient’.... In doing so, the Court has to satisfy itself that the
national authorities applied standards which were in conformity with the principles
embodied in Article 10 and, moreover, that they relied on an acceptable
assessment of the relevant facts ....”
Furthermore, the Court reiterates the essential
function the press fulfils in a democratic society. Although the press must not
overstep certain bounds, particularly as regards the reputation and rights of
others and the need to prevent the disclosure of confidential information, its
duty is nevertheless to impart - in a manner consistent with its obligations and
responsibilities - information and ideas on all matters of public interest (see
Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; De
Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of
Judgments and Decisions 1997-I; and Bladet Tromsø and Stensaas v.
Norway [GC], no. 21980/93, § 58, ECHR 1999-III). In addition,
the Court is mindful of the fact that journalistic freedom also covers possible
recourse to a degree of exaggeration, or even provocation (see Prager and
Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet
Tromsø and Stensaas, cited above, § 59). The
limits of permissible criticism are narrower in relation to a private citizen
than in relation to politicians or governments (see, for example, Castells v.
Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey,
9 June 1998, § 54, Reports of Judgments and Decisions 1998-IV; and
Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001-I).
The Court reiterates that the right to
protection of reputation is a right which is protected by Article 8 of the
Convention as part of the right to respect for private life (see Chauvy and
Others, cited above, § 70; Pfeifer v. Austria, no.
12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v.
Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come
into play, however, an attack on a person’s reputation must attain a certain
level of seriousness and be made in a manner causing prejudice to personal enjoyment
of the right to respect for private life (see A. v. Norway,
no. 28070/06, § 64, 9 April 2009, and Axel
Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).
When examining whether there is a need for an
interference with freedom of expression in a democratic society in the
interests of the “protection of the reputation or rights of others”, the Court
may be required to ascertain whether the domestic authorities have struck a
fair balance when protecting two values guaranteed by the Convention which may
come into conflict with each other in certain cases, namely on the one hand
freedom of expression protected by Article 10, and on the other the right
to respect for private life enshrined in Article 8 (see Hachette Filipacchi
Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the
United Kingdom, no. 39401/04,
§ 142, 18 January 2011; and Axel Springer AG,
cited above, § 84).
. The Court has found that, as a matter
of principle, the rights guaranteed under Articles 8 and 10 deserve equal
respect, and the outcome of an application should not, in principle, vary
according to whether it has been lodged with the Court under Article 10 of the
Convention by the publisher of an offending article or under Article 8 of the
Convention by the person who has been the subject of that article. Accordingly,
the margin of appreciation should in principle be the same in both cases (see Axel
Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08,
§ 106, ECHR 2012, with
further references to the cases of Hachette Filipacchi Associés (ICI
PARIS), cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144,
12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011).
The Court has considered that where the right to freedom of expression is being balanced against the right to
respect for private life, the relevant criteria in the balancing exercise
include the following elements: contribution to a debate of general interest,
how well known the person concerned is, the subject of the report, the prior
conduct of the person concerned, the method of obtaining the information and
its veracity, the content, form and consequences of the publication, and the severity
of the sanction imposed (see Axel Springer AG, cited above, §§
89-95, and Von Hannover (no. 2), cited above, §§ 108-113).
(ii) Application of the principles to the present case
Turning to the present case, the Court notes at
the outset that there is no dispute that comments posted by readers in reaction
to the news article published on the applicant company’s Internet news portal
were of a defamatory nature. Indeed, the applicant company promptly removed the
comments once it was notified by the injured party, and described them as “infringing”
and “illicit” before the Court. However, the parties’ views differ as to
whether the applicant company’s civil liability for the defamatory comments
amounted to a disproportionate interference with its freedom of expression. In
other words, the question is whether the applicant company’s obligation, as
established by the domestic judicial authorities, to ensure that comments
posted on its Internet portal did not infringe the personality rights of third
persons was in accordance with the guarantees set out in Article 10 of the
Convention.
In order to resolve this question, the Court will
proceed to analyse in turn a number of factors which it considers to be of
importance in the circumstances of the present case. Firstly, the Court will
examine the context of the comments, secondly, the measures applied by the
applicant company in order to prevent or remove defamatory comments, thirdly,
the liability of the actual authors of the comments as an alternative to the
applicant company’s liability, and fourthly the consequences of the domestic
proceedings for the applicant company.
The Court notes that the news article published on
the Delfi news portal addressed a topic of a certain degree of public interest.
It discussed a shipping company’s moving its ferries from one route to another
and in doing so breaking the ice at potential locations of ice roads, as a
result of which the opening of such roads - a cheaper and faster connection to
the islands compared to the company’s ferry services - was postponed for
several weeks. The article itself was a balanced one, a manager of the shipping
company was given the opportunity to provide explanations, and the article
contained no offensive language. Indeed, the article itself gave rise to no arguments
about defamation in the domestic proceedings. Nevertheless, the article dealt
with the shipping company’s activities that negatively affected a large number
of people. Therefore, the Court considers that the applicant company, by publishing
the article in question, could have realised that it might cause negative reactions
against the shipping company and its managers and that, considering the general
reputation of comments on the Delfi news portal, there was a
higher-than-average risk that the negative comments could go beyond the
boundaries of acceptable criticism and reach the level of gratuitous insult or
hate speech. It also appears that the number of comments posted on the article
in question was above average and indicated a great deal of interest in the
matter among the readers and those who posted their comments. Thus, the Court
concludes that the applicant company was expected to exercise a degree of
caution in the circumstances of the present case in order to avoid being held liable
for an infringement of other persons’ reputations.
As regards the measures applied by the applicant
company, the Court notes that, in addition to the disclaimer stating that the
writers of the comments - and not the applicant company - were accountable for
them, and that it was prohibited to post comments that were contrary to good
practice or contained threats, insults, obscene expressions or vulgarities, the
applicant company had two general mechanisms in operation. 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, to bring it to the attention of the
portal administrators. In addition, on some occasions the administrators of the
portal removed inappropriate comments on their own initiative. Thus, the Court
considers that the applicant company cannot be said to have wholly neglected
its duty to avoid causing harm to third parties’ reputations. Nevertheless, it
would appear that the automatic word-based filter used by the applicant company
was relatively easy to circumvent. Although it may have prevented some of the
insults or threats, it failed to do so in respect of a number of others. Thus, while
there is no reason to doubt its usefulness, the Court considers that the
word-based filter as such was insufficient for preventing harm being caused to
third persons.
The Court has further had regard to the
notice-and-take-down system as used by the applicant company. Indeed, the
question of whether by applying this system the applicant company had fulfilled
its duty of diligence was one of the main points of disagreement between the
parties in the present case. The Court firstly notes that the technical
solution related to the Delfi portal’s notice-and-take-down system was easily
accessible and convenient for users - there was no need to take any steps other
than clicking on a button provided for that purpose. There was no need to
formulate reasons as to why a comment was considered inappropriate or to send a
letter to the applicant company with the pertinent request. Although in the
present case the interested person did not use the notice-and-take-down feature
offered by the applicant company on its website, but rather relied on making his
claim in writing and sending it by mail, this was his own choice, and in any
event there is no dispute that the defamatory comments were removed by the
applicant company without delay after receipt of the notice. Nevertheless, by
that time the comments had already been accessible to the public for six weeks.
The Court notes that in the interested person’s
opinion, shared by the domestic courts, the prior automatic filtering and
notice-and-take-down system used by the applicant company did not ensure
sufficient protection for the rights of third persons. The domestic courts
attached importance in this context to the fact that the publication of the
news articles and making public the readers’ comments on these articles was part
of the applicant company’s professional activity. It was interested in the number
of readers as well as comments, on which its advertising revenue depended. The
Court considers this argument pertinent in determining the proportionality of
the interference with the applicant company’s freedom of expression. It also
finds that publishing defamatory comments on a large Internet news portal, as
in the present case, implies a wide audience for the comments. The Court further
notes that the applicant company - and not a person whose reputation could be
at stake - was in a position to know about an article to be published, to
predict the nature of the possible comments prompted by it and, above all, to
take technical or manual measures to prevent defamatory statements from being
made public. Indeed, the actual writers of comments could not modify or delete
their comments once posted on the Delfi news portal - only the applicant
company had the technical means to do this. Thus, the Court considers that the
applicant company exercised a substantial degree of control over the comments
published on its portal even if it did not make as much use as it could have
done of the full extent of the control at its disposal.
The Court has also had regard to the fact that
the domestic courts did not make any orders to the applicant company as to how
the latter should ensure the protection of third parties’ rights, leaving the
choice to the applicant company. Thus, no specific measures such as a
requirement of prior registration of users before they were allowed to post
comments, monitoring comments by the applicant company before making them
public, or speedy review of comments after posting, to name just a few, were
imposed on the applicant company. The Court
considers the leeway left to the applicant company in this respect to be an
important factor reducing the severity of the interference with its freedom of
expression.
The Court has taken note of the applicant
company’s argument that the affected person could have brought a claim against
the actual authors of the comments. It attaches more weight, however, to the
Government’s counter-argument that for the purposes of bringing a civil claim
it was very difficult for an individual to establish the identity of the
persons to be sued. Indeed, for purely technical reasons it would appear
disproportionate to put the onus of identification of the authors of defamatory
comments on the injured person in a case like the present one. Keeping in mind
the State’s positive obligations under Article 8 that may involve the adoption
of measures designed to secure respect for private life in the sphere of the
relations of individuals between themselves (see Von Hannover (no. 2),
cited above, § 98, with further references),
the Court is not convinced that measures allowing an injured party to bring a
claim only against the authors of defamatory comments - as the applicant
company appears to suggest - would have, in the present case, guaranteed
effective protection of the injured person’s right to private life. It notes
that it was the applicant company’s choice to allow comments by non-registered
users, and that by doing so it must be considered to have assumed a certain
responsibility for these comments.
The Court is mindful, in this context, of the
importance of the wishes of Internet users not to disclose their identity in
exercising their freedom of expression. At the same time, the spread of the Internet
and the possibility - or for some purposes the danger - that information once
made public will remain public and circulate forever, calls for caution. The
ease of disclosure of information on the Internet and the substantial amount of
information there means that it is a difficult task to detect defamatory
statements and remove them. This is so for an Internet news portal operator, as
in the present case, but this is an even more onerous task for a potentially
injured person, who would be less likely to possess resources for continual monitoring
of the Internet. The Court considers the latter element an important factor in
balancing the rights and interests at stake. It also refers, in this context,
to the Krone Verlag (no. 4) judgment, where it found that shifting the
defamed person’s risk to obtain redress for defamation proceedings to the media
company, usually in a better financial position than the defamer, was not as
such a disproportionate interference with the media company’s right to freedom
of expression (see Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 32, 9 November 2006).
Lastly, the Court notes that the applicant
company was obliged to pay the affected person the equivalent of EUR 320 in
non-pecuniary damages. The Court is of the opinion that this sum, also taking
into account that the applicant company was a professional operator of one of
the largest Internet news portals in Estonia, can by no means be considered
disproportionate to the breach established by the domestic courts.
Based on the above elements, in particular the
insulting and threatening nature of the comments, the fact that the comments
were posted in reaction to an article published by the applicant company in its
professionally-managed news portal run on a commercial basis, the insufficiency
of the measures taken by the applicant company to avoid damage being caused to
other parties’ reputations and to ensure a realistic possibility that the
authors of the comments will be held liable, and the moderate sanction imposed
on the applicant company, the Court considers that in the present case the
domestic courts’ finding that the applicant company was liable for the
defamatory comments posted by readers on its Internet news portal was a
justified and proportionate restriction on the applicant company’s right to
freedom of expression.
There has accordingly been no violation of Article 10 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 10 October
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André
Wampach Isabelle Berro-Lefèvre
Deputy Registrar President
