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European Court Finds Liability for Defamatory Comments by Anonymous Users

Delfi AS v. Estonia By Jennifer Garnett – Edited by Elise Young Delfi AS v. Estonia, no. 64569/09, Eur. Ct. H.R. (October 10, 2013) Judgment [caption id="attachment_3746" align="alignleft" width="150"] Photo By: Eugene Regis - CC BY 2.0[/caption] The European Court of Human Rights  (“ECHR”) upheld Estonian court rulings that Delfi, an online news portal in Estonia, was liable for defamatory comments posted by its users. Delfi AS v. Estonia, no. 64569/09, ¶¶7, 94, Eur. Ct. H.R. (October 10, 2013). Delfi was fined 5,000 kroons (approximately $426) in damages. Id. at ¶23. The ECHR affirmed the finding that Delfi could be held liable as a “publisher” of the work, id. at ¶50, and held that the decisions represented a “justified and proportionate” restriction on Delfi’s freedom of expression under Article 10 of the European Convention on Human Rights (“Convention”). Id. at ¶94. In so holding, the ECHR noted that Delfi was “expected to exercise a degree of caution” in monitoring comments on predictably controversial articles. Id. at ¶86. The ECHR further held that it was both practical and reasonable to hold Delfi liable, as the actual authors of the comments were anonymous and Delfi derived a commercial benefit from allowing its users to comment. Id. at ¶¶91, 93. The decision, however, may still be appealed. Index, Forbes, and the International Business Times, strongly criticize the case, arguing that the decision departs from the traditional approach to liability for anonymous comments, and that the result could have far-reaching implications for Internet liability and the freedom of anonymity. Inforrm’s Blog features a thorough and critical analysis of the Court’s decision. The ECHR’s press release may be found here. In 2006, Delfi, one of Estonia’s largest online news portals, published an article about AS Saaremaa Laevakompanii (“SLK”), a public ferry company. Id. at ¶12. The article reported SLK’s plan to change routes, which would destroy various ice roads leading from mainland Estonia to outlying islands. Id. Delfi’s portal provides a space for users to add and read comments underneath its articles. Id. at ¶8. In response to the article at issue, several users posted threatening and defamatory comments against SLK. Id. at ¶¶13–14. To monitor these types of comments, Delfi employs a “notify-and-take-down,” system, as well as a filter for obscene words. Id. at ¶9. The Harju County Court’s intial dismissal of SLK’s suit against Delfi was vacated and remanded by the Tallin Court of Appeal. Id. at ¶17-20. On remand, the County Court found that SLK’s “personality rights” had been violated, and that the defamatory comments on Delfi’s website were not protected speech, id. at ¶23, a judgment upheld by the Court of Appeal and the Supreme Court. Id. at ¶24, 26. Defli appealed to the ECHR. The ECHR’s primary holding was that the domestic courts’ decisions were a “justified and proportionate” restriction on the freedom of expression. Id. at ¶94. Such restrictions may be justified in accordance with Article 10, ¶2 of the Convention if they (1) are “prescribed by law,” (2) have one or more “legitimate aims in the light of paragraph 2 of Article 10” and (3) are “necessary in a democratic society.” Id. at ¶70. The ECHR held that Delfi was in a position to assess the risks and consequences of its conduct, and thus the restriction could be prescribed by law. Id. at ¶76. The legitimate aims of preventing threatening and defamatory statements were largely undisputed. Id. at ¶77. Finally, in finding that this restriction was “necessary in a democratic society,” the court identified several factors. First, the court concluded that Delfi “was expected to exercise a degree of caution” in the present case since the article was controversial. Id. at ¶86. Second, the court reasoned that because the identity of the anonymous authors would be difficult or impossible to track down, Delfi must assume responsibility for those comments as a practical matter. Id. at ¶91. Last, the court found that the damages were reasonable because Delfi had received commercial benefit from its users’ comments. Id. at ¶93. The judgment in this case is significant because it represents a departure from the approach of other jurisdictions and international law to date and restricts the freedom of anonymous commenting on the Internet. Inforrm’s Blog argues that the court’s decision “is a serious blow to freedom of expression,” “displays a profound failure to understand EU legal framework for intermediary liability,” and “conveniently ignores relevant international standards in the area of freedom of expression on the Internet.” In contrast, the United States has codified the principle that online portal providers “shall [not] be treated as the publisher or speaker” of content provided by a third party. 47 U.S.C. §230 (2006 & Supp. V). The act further expressly aims to remove disincentives for developing content-filtering technologies, citing the policies of “promot[ing] continued development of the Internet,” and “preserv[ing] the vibrant and competitive free market that presently exists for the Internet.” The scope and application of this decision are important open questions. As David Meyer from notes, the case’s precedential value may be minimal when viewed as a ruling solely on Estonia’s interpretation of freedom of expression.  Others, such as Forbes, are concerned about its potentially broad application, arguing that because of the global reach of the Internet, a defendant, though not a European citizen, may be held accountable under European laws wherever its users’ defamatory comments are read. Such a broad application could have serious consequences for portals that allow anonymous user comments. Index suggests that “[i]t is difficult to see how any site would allow anonymous comments if this ruling stands as precedent.”