Delfi v Estonia: dispute in the Grand Chamber of the European Court of Human Rights regarding user generated content

Triniti

On July 9 2014, the Grand Chamber of the European Court of Human Rights held a hearing in the dispute Estonia and Delfi regarding the matter on how media companies should act concerning content created by users.

It is a historic court case – a precedent could be set that all online environments where users can comment and upload images or videos, must pre-moderate the content created by users.

Delfi has been supported by nearly 70 media organisations across the world, including Google, Forbes, News Corp, Thomson Reuters and national publications and journalists’ associations. One of the best known media- and freedom of speech professor from Gent University, Centre for Human Rights and Centre for Journalism Studies, Dirk Voorhoof has said that: “the whole world of online media and civil society stimulating participatory public discussion is looking very much forward to the Grand Chamber’s judgment in the Delfi case. There are legitimate reasons to assume that the Grand Chamber can opt for a more sustainable approach in light of international and European standards on internet liability for intermediaries for user generated content, online freedom of expression and the right of anonymity on the Internet”.

“We have come from a society where the civil society and freedom of opinion was a luxury. We wish that from now on, no one in Estonia or elsewhere in Europe should have to fight for freedom of opinion, because it is a basic right of people,” Urmo Soonvald, the editor-in-chief of Delfi and Eesti Päevaleht commented on the importance of the issue.

The dispute between Delfi and the Estonian state began in late 2009 when a complaint was submitted to the European Court of Human Rights. On October 10, 2013, the court made a decision that could paralyse a significant part of the interactive and all-inclusive Internet that we all have become accustomed to.

The legal dispute, in fact, dates back to early 2006 when a neutral news item was published about an ice road breaking down, reportedly in connection with the manoeuvres of the Saaremaa Laevakompanii (Saaremaa Shipping Company).

The article attracted 185 comments. At the time, Delfi was using a filter system to automatically remove comments containing profanities and “Report an unsuitable comment” button, which could be clicked to support the removal of the comment. Six weeks after the publication of the article, Delfi was presented with a letter from a lawyer, stating that 20 comments were unsuitable. It is important to note that Delfi removed these comments immediately after receiving the claim letter.

The European Court of Human Rights found that taking into account the content of the article (sic!), Delfi should have predicted negative comments and taken pre-emptive measures to prevent damage to third parties.

Delfi’s purpose is to convince the court that in order to substantiate the freedom of expression on the Internet, it must extend to the disseminators of user generated content like news portals, video and picture sharing sites, blogs, social media. Otherwise, we give the state the right to decide what is available on the Internet. A representative of Delfi, Attorney at Law Karmen Turk has some examples to give a general idea why pre-moderation is unfeasible: “Every minute, more than 130 hours of video is uploaded to Youtube; more than 40 000 posts on Facebook; more than 2000 posts and comments in just one blogging platform WordPress.”

The court heard the positions of Estonia and Delfi on July 9 and will decide the future of the Internet in 2015.

Delfi is represented by TRINITI Attorneys at Law Ms. Karmen Turk and Mr. Villu Otsmann

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Fiancial Times (John Sunyer), The threat facing online comments, available: here
Article 19, European Court strikes serious blow to free speech online, available: here;
Dirk Voorhoof, Qualification of news portal as publisher of users’ comment may have far-reaching consequences for online freedom of expression: Delfi AS v. Estonia – Strasbourg Observers, available: here;
Tim Worstall, Every Website that Accepts Comments Now Has a European Problem – Forbes, available: here;
David Banks, Online comments: why websites should be worried by court ruling – The Guardian, available: here;
David Cochrane, European ruling raises questions over liability and online comment – The Irish Times, available: here;
Jennifer Garnett, European Court Finds Liability for Defamatory Comments by Anonymous Users – Harvard Journal of Law & Technology, available: here;
Karmen Turk, Delfi vs Estonia in the Court of Human Rights – Triniti legal blog, available here etc

The Webcast of the hearing is available in ECHR page here.