Ice Roads and Chilled Speech: ECHR Tags News Portal for Reader Comments

The Chamber of the First Section of the European Court of Human Rights held unanimously on October 10 that making a news portal liable for defamatory comments posted by its readers does not violate article 10 of the European Convention of Human Rights protecting free speech.

This decision, Delfi v. Estonia, may have negative effects on freedom of expression on the web as sites may become concerned about the responsibilities they could face if they keep their digital soap boxes open to the public.

Here are the facts of the case. Applicant Delfi, one of Estonia's largest news portals, allowed visitors to post comments about articles published on the site. About 10,000 comments were published every day, most of them anonymously. Delfi did not edit or moderate the comments, but those including obscene words were deleted automatically through a word-based filter. Also, users could flag insulting or hate-inciting comments, which were then removed. Victims of defamatory comments could contact Delfi, which deleted such comments immediately.

In January 2006, Delfi published an article about an Estonian ferry company whose decision to change ferry routes had caused some public ice roads to break. These roads are opened every winter by the Estonian government on some parts of the frozen Baltic Sea to allow traffic between the mainland and various islands. They can be used for free instead of paying a fee to the ferry company, and this is why many irate readers published inflammatory comments about the ferry company and about L., its sole majority shareholder.

In March 2006, L.'s lawyers contacted Delfi by letter asking that these comments be removed and claiming 5,000 Kroons in damages (more or less $350). Delfi complied with the request to remove comments the day it received the letter, but refused to pay any damages. L. sued.

Host or Publisher?

Delfi described its system to the ECHR as "a technical medium allowing users to publish comments," which put its users on notice that they may be liable for posting illegal comments such as insults, threats, or "obscene expressions and vulgarities" and that Delfi has the right to remove such comments.

Did that make Delfi a publisher or a mere host? The Estonian courts diverged on this point, interpreting differently the Estonian law which had implemented the 2000 European Union E-commerce Directive.

Article 14 of this Directive provides a liability exemption for information society service providers (ISSPs) storing information provided by a recipient of the service. ISSPs are defined by article 2(a) of the Directive as "any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services."

In order to benefit from that exemption, the ISSP must not have actual knowledge of the illegal information stored and must remove it "expeditiously" after being informed of its existence.

The first court found that Delfi was not a publisher, as the way it administrated the comments section of the site was "essentially of a mechanical and passive nature" (at 19). L. appealed and won. The case was sent back to the lower court which ruled that Delfi was a publisher and thus could not benefit from the liability exemption. The court reasoned that Delfi was not a mere technical intermediary but instead invited readers to post their comments online. The Estonian Supreme Court approved the lower court decision in 2009.

After that, Delfi started moderating all comments posted on the site and took its case to the ECHR, claiming that holding it liable for the comments published on the site was a violation of article 10 of the Convention, which comprises the right to impart information.

Delfi argued that its role had not been an active one and it merely stored the comments published by individuals. It also argued that the mere fact that it had procedures in place to delete illegal comments should not make it a publisher and that such ruling encourages hosts not to take any such measures to avoid liability.

But the ECHR refused to rule on whether Delfi was a publisher or a mere host, reiterating that its role is not to take the place of domestic courts, but rather to determine whether if their decisions are compatible or not with the European Convention of Human Rights.

This is regrettable, as this issue is the crux of the case.

No Violation of Freedom of Expression

What the ECHR reviewed is whether the Estonian court's decision had violated article 10 of the European Convention of Human Rights protecting freedom of expression.

This includes freedom "to impart information