European Court strikes serious blow to free speech online
14 Oct 2013
On 10 October, the European Court of Human Rights issued a judgement in Delfi AS v. Estonia (no.64569/09), a case about the news portal’s liability for third-party comments made on its website.
The Estonian courts had found that Delfi AS, the news portal, should have prevented clearly unlawful comments from being published in the portal’s comments section, even though Delfi had taken down the offensive comments as soon as it had been notified about them. When Delfi lodged a complaint with the European Court, the Court concluded unanimously that the domestic courts’ findings were a justified and proportionate restriction on Delfi’s right to freedom of expression.
ARTICLE 19 finds the judgment in Delfi to be a serious blow to freedom of expression online. The judgment displays a profound failure to understand the EU legal framework regulating intermediary liability. In addition, it conveniently ignores relevant international standards in the area of freedom of expression on the Internet.
ARTICLE 19 encourages Delfi to request the referral of the case to the Grand Chamber of the European Court and hopes that the decision will eventually be overturned.
Delfi is one of the most popular Internet news site in Estonia, publishing up to 300 news articles a day. In January 2006, it published an article online about the controversial decision of a ferry company, known as ‘SLK’, to change its routes and the implications of that decision for the ice roads between the Estonian mainland and various islands.
The article attracted 185 comments, about 20 of which contained insulting and/or threatening language towards the majority shareholder of the ferry company, referred to in the judgment as “L”. On 9 March 2006, L’s lawyers requested Delfi to remove the offensive comments and claimed 500,000 kroons (approx. 32,000 euros) in damages. Delfi complied with the request that same day but refused the claim for damages.
In April 2006, L brought civil proceedings against Delfi. Although initially unsuccessful, he eventually obtained a judgment against Delfi in June 2008 and was awarded 5,000 kroons (approx. 320 euros). Judgment was confirmed by the Tallinn Court of Appeal and upheld by the Supreme Court in June 2009.
The Estonian courts found that the comments at issue were defamatory and/or insulting and could therefore not be said to be protected by the right to freedom of expression. Importantly, they concluded that Delfi should be considered to be the publisher of the comments because it had control over the comments section of the website. As Delfi had followed its own house rules regarding its comments section, removing comments that were found to be in breach of those rules, the domestic courts rejected Delfi’s argument that it was immune from liability under the EU Directive 2000/31/EC. The courts decided Delfi could not be seen to be a purely technical, and therefore, passive intermediary.
Another significant element in the domestic courts’ reasoning was that Delfi drew economic benefits from the comments that were made in the comments section of its website. In particular, the domestic courts noted that the number of comments had an impact on the number of visits to the portal and on the applicant company’s revenue from advertisements published on the portal. The domestic courts concluded that Delfi should have prevented clearly unlawful comments from being published or removed them on its own initiative after they had been published.
In a unanimous judgment, a Chamber of the First Section of the European Court of Human Rights concluded that there had been no violation of Article 10 of the European Convention on Human Rights (ECHR). The Court broadly endorsed the reasoning of the domestic courts.
Firstly, the Court clarified its role. It stated that it was not to impose its own interpretation of domestic legislation upon that of domestic courts, nor was it to address the legal position under EU law.
The Court did not dispute that the comments in question were defamatory or even unlawful, nor that the applicant company (Delfi) promptly removed the ‘infringing’ comments. The issue was whether Delfi’s civil liability for these defamatory comments was a disproportionate interference with its right to freedom of expression.
In addressing this question, the Court first examined the context of the comments. Although the Court acknowledged that the news article itself was balanced and addressed a matter of public interest, it considered that Delfi “could have realised that it might cause negative reactions against the shipping company and its managers”. It also considered that 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.” Accordingly, the Court concluded that Delfi should have exercised particular caution in order to avoid liability.
Next, the Court examined the steps taken by Delfi to deal with readers’ comments. In particular, the Court noted that Delfi had put in place a notice-and-takedown system and an automatic filter based on certain ‘vulgar’ words. The Court concluded that the filter, in particular, was “insufficient for preventing harm being cause to third parties’. Although the notice-and-takedown system was easy to use - it did not require anything more than clicking on a reporting button – and the comments had been removed immediately notice had been received, the comments had been accessible to the public for six weeks.
The Court considered that the applicant company “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”. Since the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal, Delfi effectively exercised sole control over the publication of comments even if it did not exercise such control to its full extent.
The Court went on to note that Delfi had been given some leeway by the domestic courts in how it should ensure the protection of third-parties’ rights. Indeed, the domestic courts had not prescribed prior-registration of users or pre-moderation of comments. Instead, they had imposed a fine of 320 euros which, given Delfi’s position as a professional operator of one of the largest Internet news portals in Estonia, was ‘by no means’ disproportionate.
Finally, the Court considered that it would be disproportionate to put the onus on complainants to identify the authors of anonymous comments. By allowing comments to be made by non-registered users, Delfi had assumed a certain responsibility for them. The Court further noted that “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”. In the Court’s view, it was a daunting task at the best of times – including for the applicant - to identify and remove defamatory comments. It would be even more onerous for a potentially injured person, “who would be less likely to possess resources for continual monitoring of the Internet”.
The Court concluded that there had been no violation of Article 10 of the ECHR.
ARTICLE 19’s analysis
The First Section’s decision sets a deeply concerning precedent for freedom of expression in several respects. It also displays a worrying lack of understanding of the issues surrounding intermediary liability and the way in which the Internet works.
While the Court did not seek to address the position under EU law, a basic understanding of the provisions dealing with intermediary liability under the E-Commerce Directive (ECD) was fundamental to a proper examination of the case. This included the notice-and-takedown system and the use of filters “to prevent violations of third party rights”. However, the Court failed to appreciate that the purpose of the provisions concerning hosting liability (Article 14 ECD) is to give an incentive to platforms such as Delfi to remove content upon notice of its illegality and that, in exchange, those platforms are given immunity from liability. If they fail to take action upon notice, they could then face liability for the content at issue. In the present case, Delfi had every reason to believe that this situation fell within the ECD’s scope of protection since it had removed the material on the same day that it had received the complaint. That should have been the end of the matter.
However, both the Court and the domestic courts considered this insufficient. They believed that what Delfi ought to have done was prevent defamatory and other ‘clearly unlawful’ comments from being made public. This disregards Article 15 of the ECD (set out in para. 41 of the Court’s judgment), which prohibits Member States from imposing monitoring obligations on information society services, including actively seeking “facts or circumstances indicating illegal activity”.
ARTICLE 19 finds not only that the Court’s judgment failed to grasp the EU framework governing intermediary liability but it also ignored relevant international standards developed by the UN Special Rapporteur on Freedom of Expression in this area in his thematic report on the Internet (A/HRC/17/27). In particular, the UN Special Rapporteur recommended that “censorship measures should never be delegated to private entities, and that no one should be held liable for content on the Internet of which they are not the author.” The UN Special Rapporteur was very critical of notice-and-takedown procedures, notably the fact that material is removed without a judicial determination as to whether the content at issue was indeed unlawful. It is concerning that the Court failed to take these issues into account.
Instead, the Court approved ‘reporting button’ types of procedures, which do not require any explanation as to why the content at issue might be defamatory or unlawful. ARTICLE 19 notes that the level of detail of takedown notices has been the subject of extensive criticisms and debate across the EU, for instance in the context of the Defamation Act 2013 in the UK. This was again entirely ignored. The Court also failed to appreciate that Internet intermediaries, and indeed filters, are not best placed to make these types of determinations.
ARTICLE 19 is also concerned about some of the Court’s other conclusions. The Court concluded that the Internet filter used by Delfi to delete vulgar words was ‘insufficient’ to protect the rights of third parties. It also concluded that the notice-and-takedown procedure used by Delfi had allowed the offensive comments to remain accessible for 6 weeks, implying that Delfi should, at the very least, have removed the comments as soon as they were posted.
The fact that the type of technical measures favoured by the Court in order to ‘prevent’ third-party violations would force Internet intermediaries to pre-moderate content or inevitably block access to lawful material was entirely lost on the Court. This was despite a recent ruling by the Court of Justice of the European Union confirming this: the case of SABAM v Scarlet Extended (mentioned in the Court’s judgment at para. 45). The Court indicated that an important consideration in its judgment was the fact that the domestic courts had not ordered an injunction requiring pre-registration of users or pre-moderation by the applicant. In other words, the Court entirely failed to follow its own findings to their logical conclusion. Moreover, the Court overlooked the fact that any damage suffered as a result of the defamatory comments being accessible for six weeks was the direct result of the complainant’s own failure to notify Delfi of the material despite the availability of a swift and easy-to-use reporting procedure.
More generally, the Court seems to have assumed that every injured party acts in good faith,that reported content is always unlawful and that Internet filters are a silver bullet for dealing with every type of illegal content on the Internet. However, as has been pointed out time and again, this is not the case.
The Court also made a number of worrying statements, including the suggestion that Internet news portals should realise that their articles might “cause negative reactions”, some of which might go beyond the bounds of acceptable criticism and that they should therefore be prepared to take the necessary measures to avoid liability. For anyone familiar with the way in comments operate on online news sites, this is laughable. The vast majority of public interest news will, almost by definition, stir debate and attract comments of all kinds, including offensive ones. While it may be appropriate for such sites to remove insulting comments upon notice in accordance with their house rules, the Court is suggesting that Internet news portals have knowledge of illegal content on their platforms ‘by default’ and should take steps to prevent its publication or be prepared to face the consequences.
Short of all-out private censorship, the upshot of the Court’s judgment is that news portals should remove their comments sections in order to avoid liability. This would deprive Internet users of a valuable way of engaging in matters of public debate. It would also prevent news sites from generating revenue at a time when their business model is seriously threatened.
Following the Court’s logic, its conclusion that platforms such as Delfi should bear responsibility for anonymous comments may not be as bad as it seems in terms of its practical effect. If platforms are made responsible for any potentially illegal comment regardless of any notice-and-takedown procedure that may be in place, then a requirement to pre-register with a platform would do nothing to help intermediaries avoid liability. Of course, as noted above, the consequences of the Court’s logic are far worse since they are likely to encourage news portals to close down their comments sections. At any rate, the Court displays an unsurprisingly conservative disposition towards the Internet and the “dangers” of information remaining publicly available “forever” on the internet.
Ironically, the Court seems to have been concerned to protect individual’s rights against powerful companies online. While this may have been well-intentioned, the Court fundamentally failed to understand the role of Internet intermediaries as the gateway to the exercise of free expression. The Court also made much of the fact that the applicant company was a commercial operator rather than, for example, an individual blogger moderating his or her blog. However, the Court failed to explain the connection between drawing advertising revenue from readers’ comments and taking responsibility for that content.
Finally, while it may be true that the damages imposed on Delfi were relatively small, Delfi should never have been held civilly liable for the offensive comments when it had removed them immediately upon notice. To insist otherwise would defeat the purpose of the defence based on the ECD and would be highly likely to have a chilling effect on the free flow of information online. As such, the damages were a disproportionate interference in Delfi’s right to freedom of expression. While it may not have been within Strasbourg’s competence to rule on the legal position under EU law, its role was to tell the domestic courts that they had got it wrong. Instead, the Court has delivered an extremely short-sighted and damaging judgment for freedom of expression online.
ARTICLE 19 is concerned that the judgement in Delfi is likely to create even greater legal uncertainty in this area. We encourage the applicants, Delfi, to request a referral to the Grand Chamber and are ready to support them in this process.