Thursday, 6 March 2014

A comment on Delfi SA v Estonia

[Olivia O'Kane (@OliviaOKane1) earlier looked at the law in Delfi AS v Estonia here

Under the judgement (October 10 2013) handed down by Europe's Chamber of the First Section, Delfi and other online news sites are responsible for anonymous comments. This was a decision to uphold the Estonian court. The Court held that Delfi, one of Estonia’s main news websites, was liable for defamatory comments from its users. This was in spite of the fact that Delfi had taken down the comments as soon as they had been notified of them. 
In the Delfi AS v Estonia case the Court held that there had been no violation of Article 10. It found that the finding of liability by the Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts was not excessive.

Criticism of October 2013 judgement
The Chamber’s ruling, arguments and conclusions represent a blow against free expression on the internet. Under this decision a blog and news site is regarded and treated as the publisher. This will have far-reaching consequences for online freedom of expression. 

Most prominently, the decision ignores international standards in the area of internet freedoms and freedom of expression on the internet. It's clear that Delfi’s civil liability for the defamatory comments are a disproportionate interference with its right to freedom of expression.

The decision of the Chamber has attracted international condemnation. 

In a post on this blog, Article 19 legal officer Gabrielle Guillemin described it as a “serious blow to free speech online". Professor Dirk Voorhoof suggested that “Treating a news portal as publisher of users’ comment may have far-reaching consequences for online freedom of expression”Graham Smith asked “Who will sort out the Delfi mess?"

The case signals that Europe is becoming a  forum that is hostile to Internet freedoms. As Glenn Greenwald said above, user comments are "a vital form of accountability."

Leave to appeal

Unperturbed, the unsuccessful applicant in the case of Delfi SA v Estonia has lodged a request with the Grand Chamber of the European Court of Human Rights that the case be heard in that forum. 
In its 27 page Referral, Delfi argues that, under EU law and other international reports and policy documents of the Council of Europe, in order to safeguard the free expression on the internet, there should be no obligation for internet service providers to proactively monitor user generated content. 
Delfi’s application for a referral to the Grand Chamber has been supported by a coalition of 69 news organisations including the MLDI, Google, Forbes, News Corp., Thomson Reuters, the New York Times, Bloomberg News, Guardian News and Media, the World Association of Newspapers and News Publishers, Conde Nast, the European Newspaper Publishers’ Association, the European Publishers Council, Greenpeace, the Center for Democracy and Technology, ARTICLE 19 and national media outlets and journalists associations from across Europe. 
Future Appeal 
It has since been announced that the Grand Chamber of the European Court of Human Rights has agreed to hear the “internet comment” case of Delfi AS v Estonia. The case was referred to the Grand Chamber at the request of the applicant company after its claim was rejected by the First Section in the judgment of 10 October 2013.

In the United States a Court ruled that bloggers have First Amendment protection when sued for defamation, see here.
The INFORRM blog has considered the Delfi case in three very critical posts in 2013. 

Olivia O'Kane explained the law around Delfi v Estonia here

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