It has been announced [pdf] that the Grand Chamber of the European Court of Human Rights has agreed to hear the “internet comment” case of Delfi AS v Estonia. The case was referred to the Grand Chamber at the request of the applicant company after its claim was rejected by the First Section in a judgment given on 10 October 2013.
The Grand Chamber Panel rejected the referral requests in 16 other cases, including the case of Von Hannover v Germany (No.3) (see Alexia Bedat’s post on the original judgment).
In the Delfi AS v Estonia case the Court held that there had been no violation of Article 10. It found that the finding of liability by the Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts was not excessive.
The decision of the Chamber has been widely criticised. In a post on this blog, Article 19 legal officer Gabrielle Guillemin described it as a “serious blow to free speech online” and Professor Dirk Voorhoof suggested that “Treating a news portal as publisher of users’ comment may have far-reaching consequences for online freedom of expression”. Graham Smith asked “Who will sort out the Delfi mess?”
In its 27 page Referral [pdf], Delfi argued that EU law, as well as other international reports and policy documents of the Council of Europe reflect the principle that in order to safeguard the right to freedom of expression and information on the internet, there should be no obligation for internet service providers to proactivelymonitor user generated content.
We reported in January that Delfi’s application for a referral to the Grand Chamber had been supported by a coalition of 69 news organisations who had written to the President of the Court [pdf] stating that they consider the chamber’s arguments and conclusions deeply problematic for the right to freedom of expression on the internet.
It is likely that the Grand Chamber hearing in this case will not take place for some months, with judgment likely to be given later this year or early next. By way of comparison, the last Chamber Article 10 judgment considered by the Grand Chamber was in the case of Mouvement raëlien suisse v. Switzerland, – in that case the Chamber judgment was given on 13 January 2011, the Grand Chamber accepted the case on 20 June 2011, held a hearing on 16 November 2011 and gave judgment on 13 July 2012.