This case concerned an online news site’s liability for threats and anti-Semitic slurs posted by users in the site’s comments section. Estonian courts held, and the European Court of Human Rights (ECtHR) Grand Chamber affirmed, that the platform could be liable for those comments – even before it knew about them. The ECtHR reviewed the Estonian ruling solely for compliance with the European Convention on Human Rights -- it did not consider specific laws, such as the EU’s eCommerce Directive, except as necessary for the human rights law assessment.
Defendant news site, Delfi, had both proactive and reactive measures in place to bar inappropriate user comments. It removed the comments at issue in the case when it learned about them. It argued that strict liability for user comments, and the de facto monitoring obligation such liability would create, would violate the fundamental rights to seek and impart information under Article 10 of the Convention. The court rejected this argument, concluding that the Estonian court’s decision did not violate the Convention.
In reaching this conclusion, the ECtHR listed a number of considerations, including Context of Comments, User Liability, Measures Taken by the Platform, and Consequences of Ruling for the Platform. It emphasized that its reasoning was specific to this particular defendant’s status as a commercial news provider. Much of its analysis was based on precedent and specific considerations for news media. The outcome could thus, the ECtHR noted, be different for other Internet hosts.
In a subsequent and closely related case, MTE v. Hungary, the ECtHR rejected monitoring obligations for speech that harms a plaintiff’s reputation, distinguishing it from the hate speech at issue in Delfi. A more detailed discussion of the MTE and Delfi cases can be found in a series of CIS blog posts here.