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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.

Delfi challenged this decision before the ECtHR and argued that it breached the company’s right to freedom of expression as protected by Article 10 of the Convention. The ECtHR found that the case involved a conflict between the right to freedom of expression protected by Article 10 and the right to respect for private life, guaranteed by Article 8.

The Court found that imposing liability on Delfi was a proportionate interference with its Article 10 rights. The key point of disagreement between the parties was whether Delfi’s notify-and-take-down system and its other measures constituted adequate steps to protect third parties. While the court found that Delfi had not been entirely negligent, it ultimately found Delfi’s protections inadequate. The Court emphasised that the publication of the articles and comments was part of Delfi’s professional, commercial activity. The success of this depended on a large audience. It found that only Delfi – and not the person whose reputation was at stake – was in a position to predict the nature of the response to articles published on its site. Once posted, the comments were in Delfi’s control, and it failed to make proper use of that control. Article 8 imposes positive obligations on the state, and these justified the imposition of liability on Delfi. The Court also noted that the sanction imposed on Delfi was minimal, contributing to its overall conclusion that the domestic decision was proportionate.

Importantly, the Court concluded with a general comment on the nature of the Internet. It observed that the spread of the Internet and the danger that information, once published, will circulate forever gave special grounds for caution in such matters. This approach informed the court’s decision to place the burden of patrolling the comments on the website host rather than on the individual. Its focus was on the control enjoyed by Delfi, the commercial nature of its activities, and the extreme nature of the comments.

This decision raises serious questions about the interaction between the European Convention on Human Rights and the E-Commerce Directive. Delfi attempted to persuade the ECtHR that it was absolved from liability by the E-Commerce Directive. Article 14 of the E-Commerce Directive requires member states to ensure that information society service providers, such as websites, are not liable for information stored at the request of a user of their service, unless they have knowledge of illegal activity or information, or they fail, upon obtaining such knowledge, to act expeditiously to remove or disable access to the information.

The Court noted the existence of the Directive, and reviewed case law on it, but it refused to apply it to the facts of the case. The Estonian courts had decided that the domestic implementation of the Directive provided no relief to Delfi, and the ECtHR refused to look beyond that. This leaves open the possibility that a domestic court would be entitled to take the opposite view and find that the E-Commerce Directive did provide a defence to a company in Delfi’s position.

The refusal to consider the Directive was based on the Court’s commitment to deference to the decisions of domestic courts, rather than on an active choice to disregard the relevant EU law. It is certainly possible, however, that if required to decide the matter directly, the ECtHR would find a conflict between the Directive and the Convention. Such developments would provoke serious doubts about the workability of two separate but parallel supranational European legal systems.

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