Amicus curiae brief in Delfi v. Estonia

The HFHR submitted an amicus curiae brief before the Grand Chamber of the European Court of Human Rights in the case Delfi AS v. Estonia. The matter revolves around a crucial contemporary problem related to the freedom of speech on the Internet, namely responsibility of website administrators for unlawful content published by other users. The brief has already been filed with the case file.

The applicant, Delfi, is the Estonian news site that has been judicially found liable for defamatory statements of anonymous Internet users posted under an article. Estonian courts decided that the portal’s administrator should be treated as a news editor and legally answer for users’ entries, even though Delfi had blocked access to the unlawful comments immediately after it was approached by the party targeted by the posts. The ECtHR found that there had been no violation of Article 10 of the European Convention on Human Rights in the case. However, the applicants requested the case be referred to the Court’s Grand Chamber, and the Grand Chamber panel of five judges accepted the referral. The Grand Chamber hearing is scheduled for 9 July 2014.      

In its brief, the HFHR expressed a critical opinion on the Chamber Judgment. In the opinion of the HFHR, Estonian judges’ interference in the freedom of speech in this case was devoid of a proper legal basis. The HFHR thinks that Delfi should not be held accountable for users’ comments under the principles applicable to editors. Indeed, the company should have been awarded a possibility to waive its liability for third-party content as a website administrator under domestic laws on provision of e-services; the regulations in question implement the EU E-commerce Directive and are similar to the Polish law governing this area. According to these provisions, administrators will not be responsible for third-party comments if they block the comments immediately upon having been notified of their unlawful nature.

Moreover, as the Foundation argues, decisions of Estonian courts imposed on Delfi far-reaching preventive control obligations regarding comments appearing on the website. Such obligations are disproportionate and excessively interfere with the applicant’s freedom of speech. What is more, they have no basis under EU law.

“Judgment of the Grand Chamber, accepting the rulings of Estonian courts, may cause legal uncertainty among internet services providers and have a freezing effect on freedom of expression. (…) Right to privacy on the Internet should be effectively protected by states and we need to make an effort to improve the current safeguards in this area, but to do that we must employ more adequate means than those used in the Delfi case”, reads the brief of the HFHR.

ECtHR is also to hear a Polish case which focuses on legal liability of web services for users’ online comments, Jezior v. Poland.

The Foundation’s brief filed in Delfi v. Estonia may be viewed at: http://www.obserwatorium.org/images/Delfi_opinia%20Wieka%20Izba.pdf

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