"For freedom, as for honour, one can and one should risk one's life."
Don Quijote de la Mancha
Miguel de Cervantes
The judgment by the European Court of Human Rights (ECHR) in the matter of Delfi AS vs Estonia (Case 64569/09) has caused a bit of a stir.
At its core is another conflict between freedom of expression and the right to honour involving the mass media – essentially digital media – and its empowerment/obligation to curb defamatory content.
The case stems from a matter in which the owners of a web news portal, Delfi, were held civilly liable by the Estonian courts, which ruled that a person's right to honour had been infringed by defamatory comments made in a comments section provided by the owners of the portal for each news item.
Delfi had comment regulating measures in place on its website (an automatic filter to block comments containing certain words and a rapid notice and take-down system to remove defamatory messages). It therefore maintained that the judgment by the Estonian Supreme Court infringed its right to freedom of expression, and it appealed to the ECHR.
In its first instance decision the ECHR had ruled that holding Delfi liable was a justified and proportionate restriction of freedom of expression and therefore that the judgment in Estonia did not contravene the Charter of Fundamental Rights of the European Union. Delfi then appealed to the Grand Chamber of the ECHR.
The Grand Chamber upheld the earlier decision on very similar, though not identical grounds. For one thing, unlike the earlier decision, the Grand Chamber's judgment was not unanimous.
The legal findings of the decision address both the issue of lawfulness of the interference and the issue of freedom of expression and restrictions on that freedom.
Lawfulness entails that a provision of law "should be accessible to the person concerned and foreseeable as to its effects". Since it is the consequences that cause a person to regulate his conduct, they must necessarily be foreseeable.
Delfi claimed that there was no domestic law stipulating that an intermediary should be regarded as a publisher. The company claimed that the applicable law to be relied on was European law, which expressly prohibited the imposition of liability on intermediaries pursuant to the E-Commerce Directive No. 2000/31/EC.
Realizing that the underlying issue basically hinged on whether Delfi was regarded as being merely an intermediary, the Grand Chamber pointed out that it was not its task to take the place of the domestic courts in aspects relating to the interpretation and application of domestic legislation but only to determine whether the measures adopted and the effects they entail were in conformity with the European Convention on Human Rights.
In this context the ECHR noted that Delfi, as one of the largest news portals in Estonia, should have been familiar with domestic legislation and case law and that the possibility of liability for the circumstances described was not unforeseeable.
The Grand Chamber thus found that the lawfulness requirement was fulfilled.
Turning to the second issue of whether the interference was necessary in a democratic society, in which freedom of speech is an essential element, the ECHR endeavoured to place these principles in context with a view to establishing the possible limits that might be applicable.
In this respect the ECHR emphasized the commercial and professional nature of Delfi and the latter's commercial interest in posting the largest number of comments possible. This implies that Delfi exercised some degree of control and for that reason cannot be regarded merely as an intermediary.
The ECHR pointed out that while Delfi did have comment filters in place, these proved to be inadequate both as a preventive mechanism before the fact (by detecting the use of inappropriate words) and as a corrective mechanism after the fact (through reporting inappropriate content), because the comments were not removed for six weeks. But for this delay, the Court felt that there would have been no conflict. It should be underlined that the Court defined the controversial comments to be clearly unlawful hate speech.
The Estonian court had ordered Delfi to remove the comments and to pay 320 euros damages. This amount was deemed negligible, and Delfi had not been ordered to change its business model, so the consequences were minimal.
Based on these findings, the Grand Chamber of the ECHR ruled that the measures taken by Estonia in holding Delfi liable for the third-party comments was not a disproportionate restriction of the right to freedom of expression.
The preceding findings describe the majority opinion of the Grand Chamber, but Judges Sajó and Tsotsoria issued a dissenting opinion.
These two judges were of the opinion that the judgment would have the effect of imposing the obligation of monitoring all comments from the moment they are posted. They also considered that portals thus had incentives to discontinue offering the option of posting comments in response to news items.
According to the dissenting Judges, this will lead to collateral censorship, which was an indirect form of censorship by the government, entailing putting pressure on private providers by creating an environment in which self-censorship is inevitable in order to try to avoid liability.
The Judges regarded this as an attack on freedom of expression and as means enabling government to reach anonymous Internet users who would otherwise go unpunished.
In its judgment the Grand Chamber took pains to point out that the decision could not be generally extrapolated to other cases and that the measures ordered were only applicable to cases in which manifestly unlawful comments were posted on a portal managed professionally on a commercial basis. It therefore stated that the case did not concern other Internet fora disseminating third-party comments (e.g., a discussion forum or an electronic bulletin board) where Internet users may freely express their ideas on any subject without the discussion's being channelled by any input from the forum's manager, or social media platforms where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby.
The judgment can thus be seen to reflect current debate on the subject of the right of freedom of expression on digital media and social networks. While freedom of expression is one of the principles underpinning all democratic societies, it should not be overlooked that the right to honour, the right to privacy, and the right to one's own likeness have also been constitutionally enshrined.
Comments to news items are a new form of expressing ideas and have proven to enrich and democratize online debate, sometimes even bringing to light facts or other aspects that did not appear in the original article, hence they can doubtless be an additional source of truthfulness and balance. It has been calculated that some five billion comments are posted in Europe each year.
Nonetheless, perusing a variety of digital media readily shows that news items can also elicit anonymous comments that consist not of opinion but rather often simply of a flow of invective.
Miguel Hernández wrote, "For freedom I bleed, I struggle, I live on …". Yet he also wrote, "For liberty I shoot my way free from those who have dragged her statue through the mire". He spoke in another time, in different circumstances, but those past efforts by many are cause for reflection whether, in our day and age, people who affront and then cry that they are protected by the right of freedom of expression are not the same people who drag liberty through the mire and whether setting limits might not help buttress and hold high true freedom of expression.
Authors: Javier Fernández-Lasquetty and Fernando Díaz Martínez
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