Defamation / Reputation
Prosecutor v Elżbieta Hołoweńko and Marcin Krawczyk
Closed Contracts Expression
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The European Court of Human Rights (ECtHR) ruled that Estonia did not breach Article 10 of the European Convention on Human Rights (ECHR) when it held an online news outlet liable for defamation based on comments posted in the comments section of its articles. The court conducted a four-part test in determining whether the news outlet’s rights had been violated. First, the ECtHR found that Estonia had interfered with the outlet’s right to free expression when it imposed civil penalties for the defamatory comments. Second, the court held that the award of damages was prescribed by law, and that the outlet violated Estonia’s Civil Code Act and Obligations Act. Third, the court noted that imposing civil penalties on the outlet pursued the legitimate aim of “protecting the reputation and rights of others.” Finally, the court engaged in a balancing test to determine whether Estonia’s interference with the outlet’s rights was necessary in a democratic society; it found that Estonia acted permissibly.
Delfi is a high-volume Estonian online news outlet that publishes an average of 330 articles per day. At the time of the events leading to this legal action, these 330 articles produced more than 10,000 daily reader comments, which could be left anonymously and often turned quite offensive, threatening, and defamatory. Although a built-in filter automatically deleted any posting containing certain lewd language, the only other method of removing the comments was for another reader to mark them as inappropriate and await Delfi’s decision as to whether the comment should be taken down. (Delfi, according to court documents, did remove some comments based on its own review of them, but only rarely.)
On January 24, 2006, Delfi published an article, headlined “SLK Destroyed Planned Ice Road,” discussing how the SLK ferry company had destroyed territory traditionally used to drive from Estonia’s mainland to its islands. The article inspired 185 reader comments, and approximately 20 of them could be considered threatening or offensive to SLK’s sole shareholder, L. Approximately six weeks later, on March 9, 2006, L’s lawyers sent a request to Delfi to take down the comments immediately and pay him €32,000 in non-pecuniary damages.
Delfi partially granted L.’s requests by immediately taking down the comments, but refused to pay him the requested amount. On April 13, 2006, L. filed suit in Harju County Court. After a hearing, the county court dismissed the lawsuit, finding no liability under Estonia’s Information Society Services Act. L. appealed to the Tallinn Court of Appeal, which reversed and remanded to the trial court for further proceedings consistent with its opinion. Delfi appealed the appellate court’s decision to the Supreme Court of Estonia, but the high court declined to hear the case. On remand, Harju County Court found for L. and held that, as the publisher of the comments, Delfi was liable for defamation. Delfi appealed, but on December 16, 2008, the appellate court affirmed the court of first instance’s finding. Delfi appealed this decision but again the Supreme Court declined to hear the case. Thus, asserting its right to free expression and press, Delfi briefed its case before the European Court of Human Rights.
Leading up to Grand Chamber’s eventual decision, hundreds of nonprofit organizations, media publishers, and other groups submitted supplemental briefing before the court. For example, the Media Legal Defence Initiative (MLDI) represented 69 various “media organisations, internet companies, human rights groups[,] and academic institutions,” including Google, Forbes, Thomson Reuters, and the New York Times. On a practical level, the MLDI argued that the ECtHR was quick to assign blame for defamation without setting forth clear guidelines as to what would trigger liability – and what online publications could do to prevent this liability – in the future. The organization also decried the ECtHR’s holding in an age where that same court has recognized that the Internet is a crucial tool for advancing worldwide free expression. Further, MLDI challenged the “constructive notice,” i.e., that Delfi “should have known” that the article would lead to defamatory comments imposed by the ECtHR; instead, other European governing bodies have only imposed liability when a publication had actual notice of the defamation and failed to act “expeditiously” in removing the defamatory comments. Finally, this collective of organizations argued that simply imposing traditional rules of publishing and defamation in a brave new world of online news media was an anachronism; in fact, numerous national courts have already either directly or indirectly rejected the ECtHR’s reasoning in this matter.
MLDI and many other organizations also filed supplemental briefing on the comparative legal standards of liability for online publications that permit comments to be posted. The brief pointed out that, as important context, far less than 10% of the news outlets surveyed refused to accept reader comments. The brief then discussed various defamation liability frameworks around the globe, including that of the United States and the European Union. In the United States, for example, “intermediaries” are immune from defamation claims under § 230 of the Communications Decency Act so long as these media outlets did not “contribute” to an allegedly defamatory statement. European Union jurisprudence seems to agree, holding that “mere conduits” of online conduct were also exempt from defamation liability. This supplemental brief also set forth numerous “best practices” online publications engaged in which effectively reduced the production of defamatory statements, such as setting posting guidelines and standards and developing software for removing offensive comments. These organizations warned that if the Grand Chamber refused to recognize this already-present jurisprudence, the decision in Delfi could lead to the unfortunate situation in which online media outlets unnecessarily remove comments or ban them entirely.
Like other cases involving Article 10 on human rights under the European Convention on Human Rights (ECHR), the European Court of Human Rights (ECtHR) applied a four-part test in determining whether Delfi’s rights had been disproportionately violated.
First, the ECtHR found that the Estonian courts had interfered with Delfi’s rights to free expression and press when they imposed and affirmed civil penalties on Delfi. Second, the court engaged in a lengthy analysis in eventually holding that the award of damages was prescribed by law. While Estonian law was anything but clear-cut on whether an online publication could be held liable for defamatory comments posted on its website, the ECtHR determined that such liability was foreseeable. Specifically, by exercising control over and eventually publishing such defamatory comments, an online periodical such as Delfi violated Estonia’s Civil Code Act and Obligations Act.
Third, the court noted that, at least in principle, imposing civil penalties on Delfi did pursue the legitimate aim of “protecting the reputation and rights of others,” such as L.
Fourth, the ECtHR engaged in a balancing test in determining whether the interference with Delfi’s rights was necessary in a democratic society. Specifically, the ECtHR weighed Delfi’s fundamental human right to expression against L.’s fundamental human rights to a private life and freedom from defamation. In doing so, the ECtHR applied a seven-factor test. Some of these factors include the content, form, and consequences of the publication, L.’s prior conduct, and the veracity of the comments.
The court additionally found that the Estonian courts were correct in holding that Delfi was the “publisher” or “discloser” of the comments, both of which properly served as the basis for a defamation lawsuit. While the article was well-written and balanced, Delfi knew that the article could have the potential to produce hundreds of angry, threatening comments on the destruction of the ice roads. (Apparently, the comments on Delfi’s website were so notoriously offensive and vulgar that another Estonian publication even wrote a letter to top officials warning them of the website’s danger.) Delfi also established an electronic infrastructure for allowing such defamatory statements to be posted just underneath the article itself.
Finally, despite this knowledge and despite multiple avenues to prevent defamation, Delfi failed to stop the defamatory comments and, in fact, left them up on the website for six weeks.
Altogether, the ECtHR concluded that the award of damages against Delfi and in favor of L. was necessary in a democratic society. The court further found that the award was not “disproportionate” and that Delfi alone would be liable for the damages since tracking down the anonymous commenters and suing them was next to impossible.
As a final note, the ECtHR added that defamation had reached a new age of legal analysis when it was contained in electronic communication. Specifically, when compared to traditional print or broadcast media, defamatory information posted on the Internet could potentially remain there indefinitely and cause much greater harm.
On June 16, 2015, the ECtHR Grand Chamber released its Judgment in Delfi affirming that there had been no violation of ECHR Art. 10. The Grand Chamber reasoned that instead of infringing on Delfi’s right to free speech by holding it liable for the defamatory comments, the Estonian government’s reaction to Delfi’s handling of the comments was a “justified and proportionate restriction.” The Grand Chamber again engaged in a balancing test which weighed the benefits of the Internet –especially its capability to expand the freedoms of speech and expression – with its liabilities, such as the uncontrollable spread of potentially defamatory and hateful rhetoric. In this instance, the comments posted on Delfi were, without question, unlawful since they fell into the latter category. The Grand Chamber also did not question the Estonian courts’ application of national law to the facts at bar.
In its Article 10 analysis, the Grand Chamber determined that the comments posted on Delfi were, as discussed above, not entitled to protection under the ECHR. Additionally, the highest court affirmed that the national courts correctly concluded that Delfi was liable for defamation as the publisher of the comments. Especially considering that fine imposed on Delfi, €320, was minor, there had been no violation of the ECHR in imposing penalties upon Delfi.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Under traditional law, the publisher of defamatory information has equal liability when compared to the author of defamatory information. In this case, the court applied this law in holding that an online publication that exercises some degree of control over comments appended to its articles is a publisher. This finding greatly contracts an online publication’s right to freedom of the press. Interestingly, the court noted that Delfi’s articles, including the one in question, are consistently well-written, researched, and balanced. These factors were of no import in the ECtHR’s analysis. Should an online publication choose to grants its readers the freedom of expression to post their thoughts on an article’s subject matter, the publication could then be liable for any of the millions of comments posted each year that may be defamatory. This holding could easily lead to the even more drastic situation where online publications will prohibit comments, and thus freedom of expression, entirely in order to avoid liability.
Of course, the Grand Chamber’s decision on June 16, 2015 which affirmed the ECtHR’s analysis also contracts expression.
In their analysis of this case, Ronan Ó Fathaigh and Dirk Voorhoof characterized the ECtHR’s decision as an “overwhelming loss” for the press and its accompanying freedom of expression. These scholars also noted the highly unusual unanimous vote of the panel that heard this case. Reasoning that the ECtHR may have found Delfi liable due to a “modern-day . . . suspicio[n]” of internet media, Fathaigh and Voorhoof stated that the human rights court is weary of new media in which information is placed on the public record indefinitely.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails”
Case significance refers to how influential the case is and how its significance changes over time.
This case provides legal authority to both the European Court of Human Rights as well as all the contracting states to the European Convention on Human Rights. The decision of the Grand Chamber to affirm the ECtHR’s findings amplifies the precedential importance of this judgment.
This amicus brief provides a thorough discussion of similar law in Poland. The brief also suggests considerations the European Court of Human Rights should take under advisement in reaching its decision.
Let us know if you notice errors or if the case analysis needs revision.