Today, the Grand Chamber of the European Court issued a judgement in Delfi AS v. Estonia (no.64569/09), a case about the news portal’s liability for comments made on its website.
In response to the decision, Thomas Hughes, Executive Director of ARTICLE 19 commented, “The European Court has delivered a serious blow to freedom of expression online, displaying a worrying lack of understanding of the issues surrounding intermediary liability, and the way in which the Internet works.
In confirming the previous Chamber’s decision, the European Court showed a profound failure to understand the EU legal framework regulating intermediary liability. ARTICLE 19 is concerned that the decision will have a serious chilling effect on freedom of expression beyond the Council of Europe states. It will also greatly undermine the news publishers’ business model at a time when the news industry is already struggling.”
The case concerns Delfi AS, the news portal, that was found liable by the Estonian courts for its failure to prevent unlawful comments from being published in its comments section, despite having taken down the offensive comments as soon as it had been notified about them.
In October 2013, the European Court concluded unanimously that the domestic courts’ findings were a justified and proportionate restriction on Delfi’s right to freedom of expression. The case was referred for consideration by the Grand Chamber of the European Court, which today confirmed by fifteen votes to two that there had not been a violation of Article 10 of the European Convention on Human Rights.
The Court has thus confirmed a decision which not only significantly undermines EU legal framework in this area, but has also managed to provide an even lower threshold of protection for free expression online than the EU notice-and-takedown regime. Under the E-Commerce Directive (ECD) platforms like Delfi are immune from liability, provided they remove defamatory content as soon as they receive notice. It is only if they fail to take action upon notice that they become liable for third party content. The shortcomings of this system are well-known. In order to avoid liability, intermediaries tend to err on the side of caution and remove legitimate content. As the UN Special Rapporteur noted in his 2011 report, this has a serious chilling effect on freedom of expression.
The decision imposes liability on a news portal for the comments of its users, which not only flies in the face of regulation on intermediary liability, but is likely to discourage news portals from maintaining comments sections onto which users can post freely or anonymously. This would interfere with a valuable forum for expression, discussion, and engagement with issues online, and constitutes a significant limitation on the freedom of online expression.