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Human Rights and Online Defamation: Delfi AS v Estonia

24 February 2014

Mason Hayes & Curran Technology Law Blog

by Philip Nolan and Oisin Tobin

The decision of the European Court of Human Rights (“ECtHR”) in Delfi AS v Estonia (Application no. 64569/09, Decision of the First Section 10th October 2013) may have significant implications for the application of Convention rights to internet expression. The case concerned Delfi, a major Estonian internet news portal. In 2006 the Delfi portal published an article concerning a shipping company, SLK which attracted a number of offensive and threatening comments. The focus of these comments was L, the majority shareholder of SLK.

Delfi’s news portal allowed readers to automatically upload comments and, like many European news portals, it operated a system of notify-and-take-down. Comments with certain vulgar terms were automatically deleted and on occasion Delfi employees deleted comments on their own initiative.

L sued Delfi in the Estonian courts and was successful in establishing that Delfi, as well as the individual authors, was the publisher of the comments and had not taken adequate steps to protect the rights of the victims. In its defence Delfi relied unsuccessfully on the Estonian Information Society Services Act, the domestic implementation of the EU E-Commerce Directive. In line with the Directive, Delfi claimed that its administration of the comment environment was passive and mechanical, and that it could not be said to be the publisher of the comments. This argument failed to convince the Estonian courts and Delfi was ordered to pay €320 in compensation.