Estonia: Delfi case means that online news portal is responsible for user comments that offend

Tobias Raab

Imposing a fine on the operator of an online forum due to offending user comments does not violate Art. 10 ECHR, the European Court of Human Rights ruled in Delfi AS v. Estonia (Application no. 64569/09).

The basis of this decision was formed by a case, in which the plaintiff had been anonymously insulted by offending and threatening user comments in the Estonian online news forum “Delfi”. Comments had only been deleted by the media after the plaintiff’s lawyers demanded so. As “Delfi” was using a specific filter software, which would have made it possible to automatically find and delete offending content, a national Court had ruled “Delfi” would have been obliged to do so. By failing to delete the comments until they were asked to, the forum operator was to be hold responsible for them and had to pay the plaintiff compensatory damages of 320 EUR due to the infringement of duty. After Delfi unsuccessfully brought actions against the ruling in national justice the media filed his appeal about a violation of his right of expression according to Article 10 of the Convention in the European Court of Human Rights.

The ECtHR ruled the appellant was not violated in his right of expression by the national decision. The ruling restricted the operator’s right of expression in a proportionate and justifiable way. “Delfi” would have had the potentiality to control and filter their forum by the already used software. They therefore could have also established a system to enable other users to inform the operator about illegal content. That is why the forum operator could have been committed to delete offending comments and to pay compensatory damages, in case he neglected this duty. Besides, the operator had deleted similar content in comparable cases without being asked to do so.

The Court made it clear though that a general duty to control every single comment in the operator’s forum would inappropriately restrict their right of expression. The ECtHR also pointed out that this was not to be seen as a general ruling but as an individual case, and that each case had to be looked at individually.

Tobias Raab works as a scientific researcher at the Institute of European Media Law (EMR), Saarbrücken

Read more:

The judgement can be accessed here.

The ECtHR decision has been criticised by media organisations and media law experts. Please find below few comments on the case.

Dirk Voorhoof: Delfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers (reade here).

MLDI, European Court holds news website liable for user comments.