The Triniti law firm is representing one of Estonia’s largest news websites before the Grand Chamber of the European Court of Human Rights in a case that could have profound implications on freedom of expression on the Internet.
In particular, the dispute between the Delfi news agency and Estonia, after that country’s Supreme Court dismissed Delfi’s appeal of a ruling in favor of an Estonian ferry company’s main shareholder, involves the question of how closely websites need to police comments and whether they can be held accountable for defamatory posts — even if they are responsive in deleting such posts once asked to.
In a press release by Triniti, the firm describes it as "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.” Triniti quotes Dirk Voorhoof — who the firm describes as “one of the best known media-and-freedom of speech professor from Gent University, Centre for Human Rights and Centre for Journalism Studies — as saying 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.”
The case dates back to early 2006, when a neutral news item was published online by Delfi about an ice road breaking down, reportedly in connection with the maneuvers of the Saaremaa Laevakompanii (the 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 offensive and defamatory. Delfi removed the offending comments immediately after receiving the letter.
Nonetheless, in April 2006 the ferry company sued, and an Estonian court found Delfi liable for damages in the amount of 5,000 Estonian kroon (approximately EUR 340). Delfi’s appeal was dismissed by Estonia’s Supreme Court in June, 2009. Delfi then took the case to the European Court of Human Rights in Strasbourg, which ruled that: “Given the nature of the article, the company should have expected offensive posts, and exercised an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation.” The judgment declared that if a commercial website allows anonymous comments, it is both “practical” and “reasonable” for it to be held legally responsible for the contents of those comments.
In response, a group of 69 media organizations, Internet companies, human rights groups, and academic institutions sent an open letter to Dean Spielmann, the 51-year-old judge and president of the European Court of Human Rights, explaining that the court’s judgment could lead to “serious adverse repercussions for?.?.?.?democratic openness in the digital era.” The 69 signatories included Google, Guardian News and Media, the Daily Beast, PEN International, and the World Association of Newspapers and News Publishers.
The Court’s decision isn’t final, however. On February 17 it was accepted for referral to the Grand Chamber of the European Court of Human Rights, a relatively rare occurrence (only about 5% of cases are accepted for consideration).
According to Triniti, "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.” And Triniti Partner Karmen Turk points out the logistic nightmare the court’s ruling could create: “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 its decision is expected sometime in 2015.
Urmo Soonvald, the editor-in-chief of Delfi, says, “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.”
Delfi is represented by Triniti Partner Villu Otsmann and attorney Karmen Turk.