Internet trolls and why Strasbourg doesn’t want to get involved

Delfi AS v Estonia (Application no. 64569/09)  10 October 2013 – read judgment

This case concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. The following summary is based on the Strasbourg Court’s press release.

The applicant company owns one of the largest internet news sites in Estonia. In January 2006, Delfi published an article on its webpage about a ferry company. It discussed the company’s decision to change the route its ferries took to certain islands. This had caused ice to break where ice roads could have been made in the near future. As a result, the opening of these roads – a cheaper and faster connection to the islands compared to the ferry services – was postponed for several weeks. Below the article, readers were able to access the comments of other users of the site. Many readers had written highly offensive or threatening posts about the ferry operator and its owner.

The owner sued Delfi in April 2006, and successfully obtained a judgment against it in June 2008. The Estonian court found that the comments were defamatory, and that Delfi was responsible for them. The owner of the ferry company was awarded around 320 euros in damages. An appeal by Delfi was dismissed by Estonia’s Supreme Court in June 2009. In particular, the domestic courts rejected the portal’s argument that, under EU Directive 2000/31/EC on Electronic Commerce, its role as an Internet society service provider or storage host was merely technical, passive and neutral, finding that the portal exercised control over the publication of comments.

The portal complained that being held liable for the comments of its readers breached its right to freedom of expression under Article 10 of the Convention.

Decision of the Court

Firstly, the Court considered Delfi’s argument that EU Directive , when transposed into Estonian law, had limited its liability for the defamatory comments of its readers. It found that it was for the domestic courts to resolve issues of interpretation of domestic law and did not address the position under EU law. The national courts had relied on the provisions of the civil code to find Delfi liable and sanction it; the interference with the portal’s right to freedom of expression had therefore been lawful and complied with the “prescribed by law” requirement under the Convention.

The Court further noted that Article 10 allowed freedom of expression to be interfered with by member States in order to protect a person’s reputation, as long as the interference was proportionate in the circumstances. The essential question was therefore whether this interference was proportionate, given the facts of the case. In assessing this question, the Court assessed four key issues.

1. The context of the posts. The comments had been insulting, threatening and defamatory. Given the nature of the article, the company should have expected offensive posts, and exercised an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation.
2. The steps taken by Delfi to prevent the publication of defamatory comments. The article’s webpage did state that the authors of comments would be liable for their content, and that threatening or insulting comments were not allowed. But these warnings failed to prevent a large number of insulting comments from being made, and they were not removed in good time by the automatic-word filtering or by the notice-and-take-down notification system.
3. The owner of the ferry company could, in principle, have attempted to sue the specific authors of the three offensive posts rather than Delfi. However, the identity of the authors would have been extremely difficult to establish, as readers were allowed to make comments without registering their names. Therefore many of the posts were anonymous. Making Delfi legally responsible for the comments was therefore practical; but it was also reasonable, because the news portal received commercial benefit from comments being made.
4. The sanctions imposed by the Estonian courts against the company had been fairly small. Delfi was required to pay a EUR 320 fine, and the courts did not make any orders about how the portal should protect third party rights in the future in a way that might limit free speech.

Taking into account all of these points, the Court held that the finding of liability by the Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression.

Comment

One of the reasons why the Court considered that no breach of Article 10 had been disclosed by the Estonian authorities was that it accepted the national courts’ interpretation of the EU Directive. This diffidence on the part of Strasbourg is somewhat surprising approach, given that in other areas it rarely hesitates in having a go at the way member states have interpreted and applied their own or international law. This is what it said:

As regards the applicant company’s argument that its liability was limited under the EU Directive on Electronic Commerce and the Information Society Services Act, the Court notes that the domestic courts found that the applicant company’s activities did not fall within the scope of these acts. The Court reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among others, Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports of Judgments and Decisions 1998‑VIII).

One is tempted to wonder if the Court shied away from addressing the issue, not because it was a “problem of interpretation of domestic legislation”, but because it was a potentially difficult and controversial question of EU law. If one looks at the problem from the applicant company’s perspective, Strasbourg’s reasons do not really stack up. The Court considered that the company “was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail.”  It therefore found that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention. But the company had done precisely that: it had looked at the EU Directive, as well as the Estonian statute under which it was transposed, and had quite justifiably considered that under it internet platforms such as its own news portal would not be liable for statements posted on it, and it proceeded accordingly. However, its risk assessment had not taken into account the possibility that the local courts would not consider the EU Directive or the Information Society Services Act relevant to the company’s business. But how was it to predict that the courts would prefer the pertinent provisions of the civil law and domestic case-law, under which media publications were liable for their publications along with the authors?

Given Strasbourg’s reluctance to go anywhere near EU law, the applicant company might have done better requesting the Estonian court to refer the question by way of the reference procedure under Art. 267 TFEU  requesting a preliminary ruling from the CJEU  on the scope of the Electronic Commerce Directive and the adequacy of Estonia’s transposition. Be that as it may, Strasbourg will not be able to continue in its squeamishness about EU law, particularly when the EU accedes to the European Convention on Human Rights – see David Hart’s post earlier this year on How the ECtHR is indeed going to watch the EU.

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