European Court of Human Rights Rules Company Liable for Offensive User-Generated Comments

By Ignasi Guardans

On Monday, the Grand Chamber of the European Court of Human Rights (ECHR) ruled that an Estonian commercially-run Internet news portal was liable for the offensive online comments of its readers. This was the first case in which the court had been called upon to examine a complaint about liability for user-generated comments on an Internet news portal.

In its grand chamber judgment in the case of Delfi AS v. Estonia (application no. 64569/09), the ECHR held, by 15 votes to two, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The ECHR has a final say, above any other national jurisdiction, on matters related to the European Convention on Human Rights and its judgments have a huge influence in courts all across the Continent.

Background

The applicant company, Delfi AS, which runs a news portal run on a commercial basis, complained that it had been held liable by the national courts for the offensive comments posted by its readers below one of its online news articles about a ferry company.

At the request of the lawyers of the owner of the ferry company, Delfi had removed the offensive comments, but only about six weeks after their publication.

The Case

The case therefore concerned the duties and responsibilities of Internet news portals which provided on a commercial basis a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engaged in clearly unlawful hate speech which infringed the personality rights of others.

The question before the ECHR was not whether the freedom of expression of the authors of the comments had been breached but whether holding Delfi liable for comments posted by third parties had been in breach of Delfi’s freedom to impart information.

The Delfi case did not concern other fora on the Internet where third-party comments could be disseminated, for example an Internet discussion forum, a bulletin board or a social media platform.

The Grand Chamber found that the Estonian courts’ finding of liability against Delfi had been a justified and proportionate restriction on the portal’s freedom of expression, in particular, because:

  • the comments in question had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis;
  • the steps taken by Delfi to remove the offensive comments without delay after their publication had been insufficient; and the 320 euro fine had by no means been excessive for Delfi, one of the largest Internet portals in Estonia.

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