"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.
