CASE OF DELFI AS v. ESTONIA
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information)
András Sajó;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Robert Spano;Vincent A. De Gaetano;Ksenija Turković
10. The applicant company is a public limited liability company (aktsiaselts), registered in Estonia. 11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania. 12. At the material time, at the end of the body of the news articles there were the words “add your comment” and fields for comments, the commenter’s name and his or her e-mail address (optional). Below these fields there were buttons labelled “publish the comment” and “read comments”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “read comments” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms. 13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (an Estonian word for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, there was a system of automatic deletion of comments that included certain stems of obscene words. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately. 14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi’s Internet site there were “Rules of comment” which included the following: “The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ... Delfi prohibits comments whose content does not comply with good practice. These are comments that: – contain threats; – contain insults; – incite hostility and violence; – incite illegal activities ... – contain off-topic links, spam or advertisements; – are without substance and/or off-topic; – contain obscene expressions and vulgarities ... Delfi has the right to remove such comments and restrict their authors’ access to the writing of comments ...” The functioning of the notice-and-take-down system was also explained in the “Rules of comment”. 15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure the freedom of expression as well as the protection of everyone’s honour and good name, including sections 1043 and 1046 of the Obligations Act (Võlaõigusseadus). 16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “SLK” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. L. was a member of the supervisory board of SLK and the company’s sole or majority shareholder at the material time. 17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed against L. 18. On 9 March 2006 L.’s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments: “1. (1) there are currents in [V]äinameri (2) open water is closer to the places you referred to, and the ice is thinner. Proposal – let’s do as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag 2. bloody shitheads... they bathe in money anyway thanks to that monopoly and State subsidies and have now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew! 3. good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven! 4. [little L.] go and drown yourself 5. aha... [I] hardly believe that that happened by accident... assholes fck 6. rascal!!! [in Russian] 7. What are you whining for, knock this bastard down once and for all [.] In future the other ones ... will know what they risk, even they will only have one little life. 8. ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he. 9. “a good man lives a long time, a shitty man a day or two” 10. If there was an iceroad, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it’s your fault 11. and can’t anyone defy these shits? 12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope. 13. wonder whether [L.] won’t be knocked down in Saaremaa? screwing one’s own folk like that. 14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this. Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the state is powerless towards them – it is really them who govern the state), because they only live for today. Tomorrow, the flood. 15. this [V.] will one day get hit with a cake by me. damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way 16. bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!! 17. Estonian state, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram’s Michaelmas. Actually sorry for [L.] – a human, after all... :D :D :D 18. ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :) 19. fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year 20. you can’t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the state and [L.] do not care about the people’s opinion) ... just for fun, with no greed for money – I pee into [L.’s] ear and then I also shit onto his head. :)” 19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company. 20. On 23 March 2006 the applicant company responded to the request from L.’s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages. 21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company. 22. At the hearing of 28 May 2007 the representatives of the applicant company submitted, inter alia, that in cases like that of the “Bronze Night” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, also on its own initiative. 23. By a judgment of 25 June 2007 L.’s claim was dismissed. The County Court found that the applicant company’s liability was excluded under the Information Society Services Act (Infoühiskonna teenuse seadus), which was based on the Directive on Electronic Commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market). The court considered that the comment environment in the applicant company’s news portal was to be distinguished from the portal’s journalistic area. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them. 24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company’s liability was excluded under the Information Society Services Act. The County Court’s judgment was quashed and the case was referred back to the first-instance court for fresh consideration. 25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company. 26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal’s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had placed a note on its Internet site to the effect that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments. 27. The County Court found that the news article itself published in the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory and impaired L.’s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L.’s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage. 28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments from the portal. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims. 29. The Court of Appeal rejected the applicant company’s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to add comments. Thus, the applicant company was a provider of content services rather than of technical services. 30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal’s judgment in substance, but partly modified its reasoning. 31. The Supreme Court held as follows: “10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal’s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure. 11. The parties do not dispute the following circumstances: • on 24 January 2006 the defendant’s Internet portal ‘Delfi’ published an article entitled ‘SLK Destroyed Planned Ice Road’; • the defendant provided visitors to the Internet portal with the opportunity to comment on articles; • of the comments published [avaldatud] on the aforementioned article, 20 have contents that are derogatory towards the plaintiff [L.]; • the defendant removed the derogatory comments after the plaintiff’s letter of 9 March 2006. 12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the contents of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful contents. 13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act]. According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to the provision of the ISSA referred to, ‘information society services’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service. Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (1) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; (2) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider’s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the contents of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information. Since the Information Society Services Act is based on Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by recital 42 of the preamble to the Directive. According to this recital, the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘content services’ who have control over the contents of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive. The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments [hinnangud] and opinions (comments). In the comment environment, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant’s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the writer of the comments does not mean that the defendant has no control over the comment environment. The defendant enacts the rules for the comment environment and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant’s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not prompt the conclusion that the publishing of comments is not under the defendant’s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comment environment, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case. 14. There is no legal dispute over the fact that the defendant is the publisher of an article entitled ‘SLK Destroyed Planned Ice Road’, published on the Delfi Internet portal on 24 January 2006. The County Court found that the defendant too must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the writers of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the writers of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant. The Chamber has explained the definitions of disclosure and discloser in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [avaldamine] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [avaldamine] of information in the media, the discloser/publisher [avaldaja] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ajakirjanduslik tegevus]. At the same time, because of the nature of Internet media [internetiajakirjandus], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [trükiajakirjanduse väljaanne]. While the publisher [väljaandja] [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the writer of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [väljaandja] of printed media and an Internet portal operator are publishers/disclosers [avaldajad] as entrepreneurs. In cases concerning a value judgment [väärtushinnang] that prejudices and denigrates a person’s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [hinnangud] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public). 15. In reply to the allegations in the defendant’s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following. The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone’s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person’s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person’s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person’s honour and good name. In the interests of the protection of a person’s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff’s honour was not justified; it was therefore unlawful as there was no discussion of the topic in the comments but the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Law of Obligations is interpreted in conformity with the Constitution, injuring a person’s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats. The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the writers of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1)(4) of the Obligations Act). 16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant’s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless. On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful contents. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person’s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant’s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [süü] (section 1050(1) of the Obligations Act).” 32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the rules of commenting. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the rules of commenting was monitored as well. According to the information published, the number of comments posted by Delfi’s readers in August 2009 had been 190,000. Delfi’s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The share of defamatory comments had been less than 0.5% of the total number of comments.