On 16 June 2015, the Grand Chamber of the European Court of Human Rights passed a final judgment
in the case of Delfi versus Estonia. This ruling confirms the Court’s earlier decision of 10
October 2013, and judges that online news platforms can be held liable for readers’ reactions left
on their websites.
1. The Background
The facts forming the origin of this decision are as follows. Delfi, an online news portal that
publishes up to 330 articles each day, provides the opportunity for its users to comment on them.
This opportunity is also provided by various different online newspapers, where, as at Delfi, most
people are known to make comments using a pseudonym.
Moreover, Delfi makes it clear that the users’ reactions do not reflect the opinion of Delfi, and
the possibility exists to report abuse.
On 24 January 2006, an article was published entitled “SLK destroyed planned ice road”. In Estonia,
ice roads are public highways, which are only open in the winter, and which form across the frozen
sea between mainland Estonia and various islands. SLK is an Estonian ferry company, which is
responsible for crossings between the mainland and the islands. This article gave rise to around
185 reactions, of which 20 messages contain personal threats and aggressive language addressed
towards the main shareholder of the ferry company.
In response, this shareholder petitioned a national court in Estonia to have Delfi remove the
reactions, and pay him compensation amounting to 32,000 Euros.
Following a legal battle in Estonia, Delfi was finally held liable for these reactions and was
sentenced to pay 320 Euros compensation, for breach of the personality rights of the person in
Delfi filed an application to the European Court of Human Rights, as it deemed that this decision
constituted a breach of Article 10 of the European Convention on Human Rights (ECHR) that
guarantees the right to freedom of expression. In addition, Delfi argued that it should be regarded
as an intermediary in the sense of the E-Commerce Directive, which means that it has no general
duty to monitor, and cannot be held liable for not immediately removing illegal messages.
2. The Court’s Judgment
The hateful and offensive content of the reactions on Delfi’s website was not the subject under
discussion. The Court was to deliberate the question whether Delfi’s sentencing constitutes a
breach of Article 10 ECHR.
It should be pointed out straight away that Article 10 ECHR is not an absolute right. The second
paragraph provides the possibility to limit the right to freedom of expression in as much as this
is prescribed by law and necessary in a democratic society.
In its judgment, the European Court of Human Rights acknowledges the dilemma embodied by the
internet. The internet, on the one hand provides an unparalleled platform for full freedom of
expression, whilst at the same time opening the door to a rapid spread of messages of hate and
incitement to hatred and violence.
according to the Court, this is a case in which the extent of the responsibilities and obligations
of Internet news portals must be judged. After all, for financial reasons, the latter provide a
platform for users to comment on previously published articles. Consequently, the Court attaches
importance to the fact that the number of reactions to an article, reflects an increase in
Mindful of the fact that Delfi invites its visitors to comment on articles, there is a certain
predictability of reactions having negative consequences. Although Delfi had taken various steps to
limit hate responses, (filter mechanism and the possibility to report abuse), this proved
In spite of Delfi’s defence, the Court accepted that Delfi cannot invoke the E-Commerce Directive,
and therefore does not enjoy the same protection as Internet Service Providers. According to this
Directive, an Internet Service Provider cannot be held liable if it merely relays information, if
it retains the information, or if it offers hosting services, without having an active role in them
or having any effect on the information flowing through its network. These are the so-called safe
harbour principles of the E-Commerce Directive. An additional condition is that it may not be aware
of the illegal content of the information, and that it must promptly remove information upon
learning of its illegal context.
There is still no unequivocal answer to the question whether an online service provider can be
regarded as an Internet Service Provider.
In 2014, the Spanish Court of Appeal in Madrid decided that Youtube was able to invoke the safe
harbour principles of the E-Commerce Directive, despite the European Court of Justice having
already judged in 2011 that this was not the case for eBay.
Although, in principle, the European Court of Human Rights does not interpret the provisions of the
E-Commerce Directive, attention was paid to the fact that Delfi could be regarded by the national
court as a publisher, instead of an Internet Service Provider in the sense of the E-Commerce
An important consideration in this, was that Delfi exercises a large degree of control over
readers’ reactions. Only Delfi had the authority to adapt or remove reactions. This led, amongst
others, to the finding that Delfi does not operate as a purely technical Internet Service Provider.
The Court decided that because Delfi is a professional news portal, driven by commercial interests,
and took insufficient steps to prevent the publication of hate messages, it can be held liable for
Moreover, the sanction imposed on Delfi by the national court was rather limited, so there is no
question of a breach of freedom of expression.
Therefore, this ruling determines that an online service provider, who manages a website, and
attracts visitors on the basis of commercial considerations, can be held liable for the reactions,
which these visitors leave on the website.
In this context, it is not always sufficient to install filters, which screen reactions in advance,
or to provide a “report abuse” button.
Even a disclaimer that states that readers’ reactions in no way reflect the opinion of the website
manager, will not be enough to discharge him of liability.
On the basis of this ruling, such companies will be expected to monitor their visitors’ reactions,
and wherever possible prevent publication of messages with illegal content.
In short, if an online service provider cannot invoke the safe harbour principles of the E-Commerce
Directive, caution should be exercised concerning visitors’ activities on his website.
It remains to be seen whether other Internet news portals will feel that this ruling applies to
them, and how this will affect their website activities.