On 30 May 2014, ARTICLE 19 filed a third-party intervention in Delfi AS v Estonia (no. 64569/09). The case concerns the question whether a news portal should be liable as a publisher rather than a host for third-party comments made on its website. At the national level, the Estonian courts had found that Delfi AS, one of the most popular news portals in Estonia, should have prevented ‘clearly unlawful’ comments from being published in the portal’s comments section, even though Delfi had taken down the offensive comments immediately after it had been notified about them.
In October 2013, a Chamber of the European Court of Human Rights decided unanimously that the domestic courts’ findings were a justified and proportionate restriction on Delfi’s right to freedom of expression. The case attracted widespread criticism (see, for instance, here, here and here) and was referred to the Grand Chamber of the European Court. ARTICLE 19, together with 69 other human rights organisations, media groups, internet companies and academic institutions supported the referral. A public hearing will now take place on 9 July 2014.
ARTICLE 19 believes that this case presents the European Court with an important opportunity to address the rules governing intermediary liability, which have a major impact on freedom of expression online. In our submissions, ARTICLE 19 addresses the following:
- The importance of online comments to matters of public debate;
- Relevant international standards and comparative law material on intermediary liability;
- Our recommended approach to liability of online news media for third-party comments consistent with the right to freedom of expression; and
- Approaches to harmonious interpretation between the European Convention on Human Rights and EU law in this area.
In particular, we emphasise:
- Online comments by Internet users are an expression of the debate on matters of public interest by the public itself rather than a form of journalism. The value of comment platforms, therefore, is that they enable and promote public debate in its purest form.
- Like bloggers and other social media platforms, online news sites should be considered as hosts – rather than publishers – for the purposes of the comment section on their website. As such, they should only be held liable for their users’ comments if they have intervened in the content at issue.
- Similarly, they should retain their immunity from liability if they put in place a moderation system: it would be grossly unfair to hold online news media liable for comments posted by others on the basis that they voluntarily operate a moderation system. A finding to the contrary would have a serious chilling effect on freedom of expression and would greatly undermine news publishers’ business model at a time when the news industry is struggling to survive.
- Hosts should not be held liable for their users’ comments when they have expeditiously removed the allegedly unlawful content in compliance with EU law. To hold otherwise would be both deeply unfair and would potentially lead to the complete shutdown of online comments which would undoubtedly diminish online freedom of expression.
- In cases involving EU law, the European Court of Human Rights must pay close attention to the relevant framework and case law of the CJEU in interpreting the European Convention on Human Rights to ensure consistency between the obligations imposed under EU and ECHR law. Failure to do so could put the parties in the impossible situation of having to be either in breach of their obligations under the Convention or in breach of their obligations under the EU Charter of Fundamental Rights.