On June 16, 2015, the European Court of Human Rights (ECtHR) delivered judgement on Delfi AS v. Estonia. Delfi AS, one of Estonia’s largest online news portal, did not prevent third parties’ offensive comments from being posted on one of their articles. Thus leading to the complainant filing a civil lawsuit against the news portal. The Estonian Supreme Court found in favor of the complainant. Despite the fact that Delfi AS removed the content in a timely manner after receiving the initial complaint, the Estonian Supreme Court found that the news portal’s steps to prevent the content was inadequate and awarded the complainant €320 in non-pecuniary damages. Delfi AS brought this case to the ECtHR arguing that the Estonian Supreme Court’s decision violated their freedom of expression.
The ECtHR found that Estonian Supreme Court’s decision to hold Delfi AS liable was an appropriate restriction on their freedom of expression. The ECtHR reasoned that because the extreme offense of the comments, the commercial nature of Delfi AS, and Delfi AS’s failure to take the necessary steps to prevent the posting of the content the damages awarded to the complainant was not excessive. In fact, ECtHR stated that some limitations on freedom of expression are necessary to balance personal protections and media rights:
Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that liability for defamatory or other types of unlawful speech must, in principle, be retained and constitute an effective remedy for violations of personality rights [paragraph 110]
The decision also sets forth standards that can be used to determine when a website can be held liable for third parties’ content without breaching freedom of expression:
The Court observes that in order to resolve the question whether the domestic courts’ decisions holding the applicant company liable for the comments posted by third parties were in breach of its freedom of expression, the Chamber identified the following aspects as relevant for its analysis: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company’s liability, and the consequences of the domestic proceedings for the applicant company [paragraph 142].
The ECtHR’s findings encourage online platforms to take more steps to regulate content and block illegal content from being posted to their sites by third parties to avoid future liability. For further analysis, please see Dirk Voorhoof’s blog entitled Delfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers.