On 16 June 2015, the Grand Chamber of the European Court of Human Rights handed down its much-anticipated judgment in the Delfi AS v Estonia case. (no. 64569/09). The case concerned the liability of a news portal, Delfi AS, for the comments posted by its readers below the news articles on its website.
By a majority of 15 votes to 2, the Grand Chamber of the European Court concluded that the domestic courts’ finding that Delfi was liable for its readers’ comments was a justified and proportionate restriction on the news portal’s right to freedom of expression. Accordingly, there had been no violation of Article 10 of the European Convention on Human Rights.
In coming to this conclusion, the Grand Chamber essentially relied on its previous reasoning (which we have commented on here) whilst emphasizing the need to protect the values of the Convention and in particular the rights of individuals to be protected from clearly unlawful speech, such as defamation or ‘hate speech’. The upshot of the Strasbourg Court’s judgment is that both Internet users’ and media’s freedom of expression is worse off. Although the Grand Chamber sought to take a more nuanced approach than the Chamber in finding no violation of Article 10 ECHR, it still displays a profound misunderstanding of the purpose of conditional immunity from liability for intermediaries for third-party content as a powerful tool to protect freedom of expression. It also shows dangerous complacency in its analysis of what constitutes ‘hate speech’.
In its judgment of 10 October 2013, the Chamber of the First Section unanimously concluded that the domestic courts’ decision to hold Delfi liable for its readers’ comments was not a violation of Article 10 ECHR. The Court broadly endorsed the reasoning of the domestic courts. In particular, the Court agreed with the domestic courts’ interpretation that Delfi was more akin to a publisher than a provider of hosting services and that as such, it could not benefit from immunity from liability for third party comments under the E-Commerce Directive. The Court further considered that Delfi should have exercised special caution to avoid liability given the nature of the comments on its platform. In this regard, the Court considered that Delfi had taken insufficient steps to prevent harm caused by third parties. This was despite the fact that Delfi had put in place a notice-and-takedown mechanism and an automated filter, which flagged certain vulgar words. Finally, the fine imposed on Delfi was minimal (320 EUR) given Delfi’s position as a professional operator of one of the largest Internet news portals in Estonia. The Chamber further reasoned 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 concluded that there had been no violation of Article 10 of the Convention.
Following severe criticisms of the Chamber’s judgement and with the support of 69 media organisations, Internet companies, human rights groups and academic institutions, the Grand Chamber Panel granted Delfi’s request for a referral to the Grand Chamber.
Grand Chamber judgment
By a majority of 15 to 2, the Grand Chamber upheld the Chamber’s judgment. By and large, the Grand Chamber followed the same reasoning as the Chamber whilst toning down some of its more controversial remarks on online anonymity. At the outset, the Grand Chamber considered the following:
- An Internet news portal is a publisher. The main difference with traditional print media is the ability for third parties to post comments on the platform. It is to that extent, therefore, that an Internet news portal’s duties and responsibilities may differ from those of traditional print media.
- The majority of the comments at issue were manifestly unlawful since it was “obvious” that “viewed on their face” they were tantamount to “incitement to hatred or violence”. As such, there was no need for linguistic or legal analysis to establish the unlawful nature of the comments.
- The case concerned the duties and responsibilities of a media actor, i.e. a large professionally managed business entity, which published news and invited readers’ comments to make a profit. It did not concern Internet discussion forums or bulletin boards, which are typically unmediated by moderators or social media platforms, which do not provide any content of their own. Equally, it did not concern individuals running a blog as a “hobby”.
Next, the Grand Chamber examined whether the restriction at issue was “prescribed by law”. Like the Chamber, the Grand Chamber considered that it was not its role to substitute its own interpretation of domestic legislation to that of the domestic courts or address the position under EU law. Although Estonian law provided for various approaches to liability to take account of the nature of new media, the Grand Chamber was satisfied that it was sufficiently foreseeable that an Internet news portal could, in principle, be held liable under domestic law for clearly unlawful comments posted by third parties. This was especially so in the case of a professionally and commercially run enterprise, such as Delfi, which had access to legal advice and was therefore in a position to assess the risks related to its activities.
The Grand Chamber went on to assess the proportionality of the restriction at issue. In concluding that the interference was justified, the Grand Chamber considered the following:
- As a professionally managed and commercially driven company, Delfi sought to attract comments and had a moderation system in place. Accordingly, its role was more than that of a passive, purely technical provider.
- Suing the authors of the comments at issue was not a realistic or effective option given that a large number of comments were made anonymously.
- The Supreme Court of Estonia had not found Delfi liable for failing to prevent the publication of the comments but for failing to remove them without delay after their publication. Although Delfi had put in place a notice and takedown mechanism and used a filter, the filter had been insufficient having failed to “filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments”. Given the myriad possibilities of making one’s voice heard on the Internet, it could not be said that the taking down of individuals’ comments on an Internet news portal amounted to private censorship. Moreover, in circumstances where the comments at issue amounted to ‘hate speech’ or threats of violence, Internet news portal were under a more stringent duty of care to remove the comments even without notice since it would be too burdensome for the targeted individuals themselves to continuously monitor the Internet and then put the portal on notice.
- There was no evidence that the Delfi judgment had had a negative impact on Delfi’s business model. Delfi was still thriving and similar Internet news portal had not been required to pay any compensation for non-pecuniary damages when found liable for users’ comments.
As one of many interveners in this case, ARTICLE 19 was deeply disappointed by the Grand Chamber’s judgment. As Judges Sajo and Tsotsoria made clear in their powerful joint dissenting opinion, the decision set a deeply troubling precedent for freedom of expression online. Following as it does the reasoning of the First Section, it shares many of the flaws of that judgment. Nonetheless, several issues deserve to be highlighted.
First, the Grand Chamber narrowed its findings to Internet news portals. In doing so, it gave itself leeway to address the issues raised by social media platforms and other Internet fora differently in future. Although this distinction may have been an exercise in damage control by the Court, it puts media organisations at a significant disadvantage vis-à-vis Internet giants such as Facebook or Youtube. Indeed, at least for the time being, the Court has laden Internet news portals with more onerous duties and responsibilities than social media platforms despite the strong similarities in the way in which they operate as regards third-party comments. This is not only unfair but also ignores the reality of media consumption, which increasingly takes place via social media platforms.
Secondly, the Grand Chamber shifted the emphasis of the case from comments that were originally described as ‘defamatory’ to comments, which “on their face” were “obviously” tantamount to ‘hate speech’ or ‘incitement to violence’. Given that “‘hate speech’ is not protected by Article 10”, the Grand Chamber seemingly derived a more stringent duty of care on the part of Internet news portals in relation to this type of content. This development is worrying for several reasons. First, the Court seemingly conflated defamation and ‘hate speech’ without any regard whatsoever for the differences in the way in which these types of expression are normally analysed in its own case-law. Secondly, the Grand Chamber displayed a cavalier attitude to the protection of freedom of expression on platforms by lumping all the comments at issue under the banner of ‘hate speech’ or ‘clearly unlawful content’ without any individualized assessment of the comments in question: that the Court could come to the conclusion that “the majority” of comments were “manifestly” unlawful and did not deserve linguistic or legal analysis seems incredibly complacent. Moreover, as any free speech lawyer knows, whether or not content amounts to unlawful defamation or ‘hate speech’ is highly context specific and rarely “obvious”. In holding that, the Court merely displayed its unsophisticated analysis of concepts like ‘defamation’, ‘hate speech’, ‘incitement to violence’ or ‘threats of violence’. For example, there was nothing “manifestly unlawful” about comments such as “and can’t anyone defy these shits?”. More generally, unlike Blair J in Canada or Eady J in the UK, the Court displayed a patent lack of understanding of the nature of comments made on the Internet as well as concepts such as “mere vulgar abuse”, i.e. remarks which are not intended to be taken seriously.
Furthermore, if the Court was unwilling to contradict the Estonian Supreme Court’s classification of Internet news portals as ‘publishers’ rather than ‘intermediaries’, it didn’t hesitate to re-interpret the Supreme Court’s decision as regards the duty of care of Internet news portals. In order to avoid the potential implications of a duty to prevent the publication of comments (and the deluge of criticisms that would have ensued as this would have amounted to a form of prior restraint), the Grand Chamber instead opted for a duty to remove manifestly unlawful comments without delay after publication, i.e. without notice. The upshot of the Court’s decision is that Internet news portals (at least in Estonia) are now required to monitor user-generated comments and remove them of their own initiative on the basis of their filter magic. In other words, if the Grand Chamber was seeking to limit the negative impact of its ruling on freedom of expression, it has merely created a legal fudge, whose practical impact is indistinguishable from a downright duty to monitor and prevent the publication of third-party content deemed ‘manifestly unlawful’ by an algorithm. As the Grand Chamber did not bother to distinguish between ‘hate speech’ and merely offensive comments, the latter are far more likely to be removed from Estonian Internet news sites.
Finally, the Court made much of the fact that Delfi was a professionally managed entity, which was inviting readers to make comments to make money. However, as Judges Sajo and Tsotsoria note, “To find that responsibility of the press (or of any speaker, for that matter) is enhanced by the presence of an economic interest does not sit comfortably with the case law”. The fact that a newspaper or publisher publishes books or news articles for commercial gain should have no bearing on the level of protection afforded to the books or news articles they produce. Similarly, the fact that Internet intermediaries facilitate the exercise of freedom of expression should not entail greater responsibilities by virtue of the fact that they do so for commercial purposes. Again, the Court entirely ignored the purpose of conditional immunity from liability for the protection of freedom of expression and the stimulation of public debate on matters of public interest.
What then of the impact of the Court’s judgment in this case? As others have pointed out, the Court’s decision is best regarded as turning on its particular facts rather than setting a new duty of care for Internet news portals outside of Estonia. In this regard, it is notable that the Grand Chamber was reluctant to overrule the interpretation of the Estonian Supreme Court that Internet news portals were publishers rather than hosting providers for the purposes of Estonian domestic law.
Whatever its intended scope, however, the net result of the Court’s decision is that it creates further legal uncertainty in an already complex area of the law. It is also likely to play in the hands of other powerful players at a time where the E-Commerce Directive is about to be revisited. Delfi represented a genuine opportunity for the Grand Chamber to demonstrate a forward-looking approach to freedom of expression in a digital age. Sadly, its decidedly-analogue analysis has only endangered it further.
Gabrielle Guillemin is Senior Legal Officer at ARTICLE 19, an international free speech organization. She formerly worked as a lawyer at the European Court of Human Rights. For more information on ARTICLE 19’s third-party intervention in the Delfi case, see here.