Free speech and common sense: Delfi AS v Estonia

You would have thought that, when the European Court of Human Rights returns a judgement in accord with common sense, it would have been welcomed. Instead it seems that it is being misinterpreted and branded as a blow against human rights.

The case in question is Delfi AS v Estonia, which judgement you can read in full here.

The facts are fairly straightforward, according to the judgement. Delfi AS operated one of the largest commercial Internet news portals in Estonia, posting up to 330 articles daily. As with most such sites, viewers were invited to post comments to articles, which were then published automatically, without any moderation or checking for their suitability.

Although the site published fairly standard Rules of Comment which prohibited offensive material being posted, and warned that such comments would be removed, this seldom seemed to happen, and the site had acquired a certain notoriety for the offensive comments which were allowed to stand.

One entity involved in a news story posted on the site took offence at a large number of extremely offensive and abusive comments directed at them, which had been left in full view for several weeks, and it was only after receipt of a damages claim by that entity that those comments were eventually removed, six weeks after they had first been posted.

There then followed something of a legal mess. The civil claim for damages against Delfi AS was first dismissed on the grounds of clauses in the European Directive on Electronic Commerce which allowed distinction between the area governed by the company’s editorial responsibilities, and the viewer comments which were not deemed its responsibility.

An appeal was made against that, and the original judgement was quashed and the case referred back for fresh hearing. At that hearing, the court found in favour of the claimant, under different laws. This went to appeal, then to the Supreme Court, which successively upheld the judgement.

Since then, Delfi AS has introduced a moderation system and now removes a significant number of comments which are deemed offensive and in breach of its Rules of Comment.

The reason for this being taken to the European Court of Human Rights was the claim that, under Article 10 of the Convention on Human Rights, Delfi AS should not be held liable for comments posted by readers of its news portal, under the right to freedom of expression. The Estonian Government contested their claim.

The judgement of the European Court of Human Rights is long and complex, and merits careful reading before anyone rushes to comment on it. However it has upheld the stance adopted by the Estonian courts. As a result there has been outcry from journalists and organisations claiming to campaign for human rights, particularly that of free speech.

On Ars Technica UK, Glyn Moody wrote that “Delfi’s unexpected defeat there is likely to have important, if subtle consequences on not just the Web, but also freedom of speech and privacy, across the European Union.” He further quoted Peter Micek, Senior Policy Counsel at Access, who wrote:
“the Court has dramatically shifted the internet away from the free expression and privacy protections that created the internet as we know it” “This ruling is a serious blow to users’ rights online. Dissenting voices will have fewer outlets in which to seek and impart opinions anonymously. Instead, users at risk will be dragged down by a precedent that will keep them from accessing the open ocean of ideas and information.”
And Raegan MacDonald, European Policy Manager, Access, wrote:
“Today’s decision by the Court, which imposes liability on websites for user-generated comments, will result in real challenges to freedom of expression and anonymity online.” “The precedence set by the Court today risks chilling free speech online, in Europe and beyond.”

It is time, perhaps, to remind organisations who see free speech as an unalienable right which can be abused to hurt and harm others, that like most rights it comes with responsibilities. In the words of the equally important second paragraph to Article 10 of the Convention:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

As I wrote in today’s article about online bullying, it is time for those who publish offensive content, albeit written by others, to shoulder their responsibilities and protect the rights of those who may be damaged by such content. And I am delighted that Delfi AS seems to have accepted that responsibility now.