ARTICLE 19, together with 69 other organisations, has written to the Grand Chamber of the European Court of Human Rights to urge that they accept the referral of the First Section decision in Delfi v Estonia (no.64569/09), which threatens to seriously restrict freedom of expression online. The letter, which ARTICLE 19 was instrumental in drafting, has been signed by a large number of international media companies including Google, Thomson Reuters, The New York Times, Bloomberg, Dow Jones, The Guardian and Forbes.
The Strasbourg court’s decision in Delfi, concerns a news portal’s liability for third-party comment made on its website. The Estonian court held the news portal liable for defamatory comments posted by third parties. This was despite Delfi removing the comments as soon as they had been notified of their existence. The First Section of the European Court of Human Rights found that the Estonian courts’ decision had not violated article 10.
The Court’s decision has come under fierce criticism. In particular, the judgement creates considerable uncertainty for news sites on how to handle their users’ comments. Delfi already had in place a notice-and- take down system in line with EU law requirements and a filter based on “vulgar” words. However, the Court agreed with the domestic courts that this was insufficient to protect third parties from harm as the defamatory comments had remained online for 6 weeks. The implication of the Court’s decision is that Delfi and other news sites are required to prevent defamatory comments from appearing on their site for any period of time. It also places a significant burden on news outlets to police their comment boards. This, however, is out-of-kilter with the letter and spirit of the provisions dealing with intermediary liability under the E-Commerce Directive (ECD).
The Court thus not only significantly undermined the EU legal framework in this area, it has 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. However, the European Court has gone even further: its judgment is likely to lead platforms to consistently monitor and/or eliminate user comments before they are even posted. It is therefore a serious blow to freedom of expression on the internet.
Delfi is a tremendously significant case for freedom of expression online. The applicant’s lawyers have already filed a request for a referral to the Grand Chamber. ARTICLE 19, together with 69 other organisations, fully supports their application. This is not just about Estonia. In a clear sign of the importance of this case, organisations such as Google, Forbes, News Corp., Thomson Reuters, the New York Times, Bloomberg News, Guardian News and Media, the World Association of Newspapers and News Publishers, Conde Nast, the European Newspaper Publishers, EDRi and the Media League Defense Initiative have also signed on to the letter. Let’s hope the Grand Chamber Panel heeds our call.