In the landmark case of Delfi v. Estonia, the Grand Chamber of the European Court of Human Rights today decided that news portals could be held liable for clearly unlawful content in third party postings.

The case is available here.

Even if the news portal provider was not the author of the comments in question, it could be held responsible, and Article 10 of the European Declaration of Human Rights – freedom of expression – was not violated, it found.

The case had been first tried before Estonian courts after the owner of a ferry company sued the news provider Delfi for defamatory comments by readers posted alongside a story on the ferry service.

Ice road between Estonia’s mainland and Hiiumaa island

The ferry provider, SLK, by changing travel routes to some islands, had caused demolition of ice roads otherwise available as a cheaper alternative to travel to these islands.

Estonian courts, including the Supreme Court (2009), upheld a fine of €320 euros for Delfi despite the fact that Delfi had taken down the incriminated content six week after its publication.

The 17-member Grand Chamber today upheld the 2013 ruling of the Chamber of the European Court of Human Rights that Article 10 had not been violated.

The extreme and, according to the judges, clearly unlawful nature of the readers’ comments and the fact that the portal posted the content without providing for users to take them down were major reasons given by the court for its decision.

The comments were “tantamount to hate speech and incitement of violence against the owner of the ferry,” and therefore not protected by Article 10. Instead, the lower courts had decided for balancing expression rights with fundamental personality rights of the ferry owner.

In addition, the ferry owner was not able to file complaints directly against the authors of the comments – as they were allowed by Delfi to post anonymously – nor had the system in place to cut out extreme hate speech been working to cut out the comments.

The judges today underlined that they saw this as a very narrow case. According to the press release, “The case did not, on the other hand, concern other fora on the Internet where third-party comments could be disseminated, for example an Internet discussion forum or a bulletin board where users could freely set out their ideas on any topic without the discussion being channelled by any input from the forum’s manager; or a social media platform where the platform provider did not offer any content and where the content provider might be a private person running the website or a blog as a hobby,” they said.

Nevertheless, two judges filed a dissenting opinion warning against a “liability system that imposes a requirement of constructive knowledge on active Internet intermediaries (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content).”

The consequences could well be that “for the sake of preventing defamation of all kinds, and perhaps all ‘illegal’ activities, all comments will have to be monitored from the moment they are posted.” Self-censorship at its worst could be the consequence, judges Andras Sajo and Nona Tsotsoria wrote.

“Worrying Setback”

The advocacy group Access issued a statement calling the decision a “worrying setback”.

“Access denounces the ruling of the European Court of Human Rights against the news website Delfi.ee,” Peter Micek, senior policy counsel at Access, said. “The ruling creates a worrying precedent that could force websites to censor content. It also creates a perverse incentive for websites to discourage online anonymity and freedom of expression.”

“Despite warnings from groups defending vulnerable internet users, as well as from large media companies, the Court has dramatically shifted the internet away from the free expression and privacy protections that created the internet as we know it,” he said.