The European Court of Human Rights, in Defli AS v Estonia, has upheld unanimously a finding of liability against an Internet news portal regarding offensive comments that were posted online by one of its readers. The Court held that making Defli AS liable for the comments was a justified and proportionate interference with its right to freedom of expression and thta there was no violation of Article 10 (freedom of expression).
The facts of the case date back to 2006, when Delfi AS, one of Estonia’s largest internet news sites published an article relating to a ferry company and its decision to change some of its routes to certain islands. This change subsequently damaged ice roads considered to be a cheaper alternative to the ferry services. This led to an outcry of abusive and potentially defamatory online comments about the owner of the ferry company underneath the article.
The owner complained in writing in relation to the comments but chose not to avail of the website’s automated complaint flagging system. Once Delphi AS received the written complaint they removed the defamatory comments, however, they had already been online for six weeks. The owner subsequently sued Defli AS, with the Estonian courts ruling that the comments were in fact defamatory and that Delfi AS was responsible for them. What followed was an unsuccessful appeal to the Supreme Court and a subsequent appeal to the European Court.
Delfi AS argued that they had limited liability for the defamatory comments of its readers by relying on EU Directive 2000/31/EC on Electronic Commerce. The Court held that it was for the domestic courts to interpret the interpretation of domestic law and so did not consider this point at EU level. It merely examined the whether the interference with the freedom of expression was proportionate in relation to the facts of the case.
The Court examined four key issues;
· The context of the posts;
· The steps taken by Delfi AS to prevent the publication of defamatory comments;
· Whether the actual authors of the comments could have been made liable for them; and
· The consequences of Defli AS being made liable.
While it appears that Delfi AS had extensive procedures in place to deal with online commentary and potential defamatory material published on their website, the Court held that the comments were not removed in good time and found unanimously that they were in fact liable.
While this ruling is not yet considered precedent as it is subject to appeal, it has the potential to cause alarm for many websites not to mention the large administrative burden for websites specifically trying to filter out potentially defamatory material or commentary.