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ECHR Case law, News

ECHR Case law – Delfi AS v Estonia – ISP liability v freedom of expression

On 10th October  the European Court of Human Rights released so far unnoticed judgment in the case of Delfi AS v. Estonia (application no. 64569/09) concerning the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. Though the portal had argued that an EU Directive on Electronic Commerce, as transposed into Estonian law, had made it exempt from liability, the Court found that it was for national courts to resolve issues of interpretation of domestic law, and therefore did not address the issue under EU law and held that its right to freedom of expression was not breached as the finding of liability by the Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts was not excessive.

Despite mentioned case-law of the Court of Justice of the European Union that explains article 14 and 15 of Directive 2000/31/EC on electronic commerce and despite the overall attempt to harmonize the procedure of “Notice-and-action” launched by European Commission (In January 2012 the Commission announced an initiative on “notice-and-action” procedures in the Communication), the Court left national courts to resolve issues of interpretation of domestic law that should be interpreted in EU without considerable difference.

What this means for the Czech republic? So far the main issue is  what is the reasonable period for taking the post down if the content is clearly and manifestly illegal. It has been subject of the court decisions but there is no exact criteria that the court has to assess. So far the courts stated that 10 days are not acceptable, 3 day period is reasonable. What the court explained is that one of the relevant factor to decide is the nature of the ISP and whether has a potential of enough employee to manage it in reasonable time or not. The Act n. 480/2004 Coll., on the information society services changes in Article 5 the negative condition into the positive wording. Under certain conditions this shall result into the same conclusion, however in the case of the liability it may lead to the stricter interpretation –  that even prior the notification (or without notification)  the ISP is liable. If the ESPL stated in the Delfi case the liability is up to national state than it can happened that no longer the Czech law will follow the German: Der Bundesgerichtshof (The Federal Court of Justice of Germany) VI ZR 93/10, 25.10.2011 in case Google Inc. (blog) v unnamed individual and will follow its own national way.

Delfi AS put a request for referral to the Grand Chamber on 8th Janury 2014.

Background:

 The applicant, Delfi AS, is a public limited company registered in Estonia. It owns one of the largest internet news sites in the country.

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 5,000 kroons (EEK) in damages (around 320 euros [EUR]).

 By a judgment of 25 June 2007 L.’s claim was dismissed. The County Court found that the applicant company’s responsibility 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.

 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 (Võlaõigusseadus) and deemed the Information Society Services Act inapplicable. 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 that it was not liable for the content of the comments.

 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 preliminary 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. Its activity was not of a merely technical, automatic and passive nature; instead, it invited users to add comments.

 The Supreme Court approved the lower courts’ interpretation of the Information Society Services Act, and reiterated that an information society service provider, falling under that Act and the Directive on Electronic Commerce, had neither knowledge of nor control over information which was transmitted or stored. By contrast, a provider of content services governed the content of information that was being stored. In the present case, the applicant company had integrated the comment environment into its news portal and invited users to post comments. The number of comments had an effect on the number of visits to the portal and on the applicant company’s revenue from advertisements published on the portal. Thus, the applicant company had an economic interest in the comments. The applicant company could determine which comments were published and which not. The applicant company and the authors of the comments were to be considered publishers of the comments. On the basis of its legal obligation to avoid causing damage to other persons the applicant company should have prevented clearly unlawful comments from being published.

Merits

The applicant had been forced to alter its business model completely and compelled to monitor every comment posted on its news portal – up to 10,000 comments a day. Although certain technical and manual procedures had already been applied prior to the Supreme Court’s judgment, the scope of that activity and its legal implications had substantially changed as a result of the judgment concerned.

The applicant company argued that the interference with its freedom of expression had not been “prescribed by law”. It argued that the civil law provisions relied on by the Supreme Court embodied a negative obligation not to publish defamatory information. In the applicant company’s view there was no obligation in the domestic law for it to pre-monitor all the content posted by third persons.

It was sufficient that the personal rights of individuals were protected by a two-limb system – firstly by the notice-and-take-down system operated by the service provider, and secondly by the possibility of bringing a claim against the authors of the comments.

It had only played a passive role in hosting the comments; it had had no active knowledge of the illicit comments, nor had it been or should have been aware of the illicit comments before the relevant notice by L., after which the applicant company had promptly removed the comments.

 The domestic courts had not prescribed to Delfi how it should perform its duties, leaving this matter for the applicant company and considering that there were various means of doing this.

 The Government argued that the applicant company was not a hosting service provider for the purposes of the Information Society Services Act when publishing comments posted on Delfi’s articles. A hosting service provider offered merely a data storage service, while the stored data, their insertion, removal and content (including ability to remove or change the stored data) remained under the control of service users. In the Delfi commenting environment those commenting lost control of their comments as soon as they had entered them, and commenters could not change or delete their comments. Thus, Delfi was not a technical intermediary in respect of comments, but a content service provider. It deleted and modified comments if needed, and had also done so prior to the Supreme Court’s judgment, playing therefore an active role of such a kind as to give it knowledge of, or control over, the data relating to the comments to its articles. The fact that Delfi had taken measures to minimise insulting comments, for example by screening, demonstrated that Delfi had actually been aware of its liability.

 The Court’s assessment

 The Court notes that the focus of the parties’ arguments differed as regards the applicant company’s role in the present case. . The applicant company argued that the domestic law did not entail a positive obligation to pre-monitor content posted by third persons, and that its liability was limited under the EU Directive on Electronic Commerce. The Government referred to the pertinent provisions of the civil law and domestic case-law, under which media publications were liable for their publications along with the authors.

Regardless of the exact role to be attributed to the applicant company’s activities, it is not, in substance, in dispute between the parties that the domestic courts’ decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention.

The Court notes that the domestic courts found that the applicant company’s activities did not fall within the scope of these acts (EU Directive on Electronic Commerce and Information Society Services Act). 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.

 The Court further notes that pursuant to the pertinent provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 31 to 36 above), the applicant company was deemed liable for the publication of the defamatory comments. Although these provisions are quite general and lack detail in comparison with, for example, the Information Society Services Act. The present case publication of articles and comments on an Internet portal was also found to amount to journalistic activity and the administrator of the portal as an entrepreneur was deemed to be a publisher can be seen, in the Court’s view, as application of the existing tort law to a novel area related to new technologies

 It therefore finds that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention as it pursued legitimate aim and was necessary in a democratic society.

 The article dealt with the shipping company’s activities that negatively affected a large number of people. Therefore, the Court considers that the applicant company, by publishing the article in question, could have realised that it might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech. Thus, the Court concludes that the applicant company was expected to exercise a degree of caution in the circumstances of the present case in order to avoid being held liable for an infringement of other persons’ reputations.

 As regards the measures applied by the applicant company, the Court notes that, in addition to the disclaimer stating that the writers of the comments – and not the applicant company – were accountable for them, and that it was prohibited to post comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, the applicant company had two general mechanisms in operation. Firstly, it had an automatic system of deletion of comments based on stems of certain vulgar words. Secondly, it had a notice-and-take-down system in place according to which anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose, to bring it to the attention of the portal administrators. In addition, on some occasions the administrators of the portal removed inappropriate comments on their own initiative. Thus, the Court considers that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties’ reputations. Nevertheless, it would appear that the automatic word-based filter used by the applicant company was relatively easy to circumvent. Although it may have prevented some of the insults or threats, it failed to do so in respect of a number of others. Thus, while there is no reason to doubt its usefulness, the Court considers that the word-based filter as such was insufficient for preventing harm being caused to third persons.

 The interested person did not use the notice-and-take-down feature offered by the applicant company on its website, but rather relied on making his claim in writing and sending it by mail, this was his own choice.

 The Court notes that in the interested person’s opinion, shared by the domestic courts, the prior automatic filtering and notice-and-take-down system used by the applicant company did not ensure sufficient protection for the rights of third persons. The domestic courts attached importance in this context to the fact that the publication of the news articles and making public the readers’ comments on these articles was part of the applicant company’s professional activity.

 The Court has also had regard to the fact that the domestic courts did not make any orders to the applicant company as to how the latter should ensure the protection of third parties’ rights, leaving the choice to the applicant company. Thus, no specific measures were imposed on the applicant company.

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About ondrejovae

Czech Attorney/Barrister located in Prague with specialization in media law and protection of personal rights

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