Delfi Reloaded: The ECHR Confirms that Internet News Portals Are Liable for User-Generated Defamatory Comments

Today, the Grand Chamber of the European Court of Human Rights (ECHR) delivered a long-awaited decision in Delphi AS v. Estonia. Confirming an earlier judgment rendered on October 10, 2013 by the Fifth Section of the ECHR, the Grand Chamber held that finding Delfi liable for comments posted by third parties had not been in breach of its freedom to impart information. Please refer to our previous blog post for a report on the October 2013 decision and the facts of the case.

The ECHR had been called upon to review the validity of a number of judgments form Estonian courts against Delfi according to the principles of the European Convention on Human Rights. For the first time, the ECHR had to consider whether an Internet news portal should be liable for user-generated comments. In particular,

the case 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 Grand Chamber found in favor of Estonia by 15 votes to 2 and largely confirmed the conclusions reached by the smaller chamber in October 2013. In sum, 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.

The decision of the ECHR was a blow to freedom of expression advocates, who submitted briefs in support of Delfi warning about the implications of the case for freedom of expression, anonymity online and innovation.

The full decision is available here. The press release can be found here.

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