Thoughts on the Delfi vs Estonia case

Today, the Grand Chamber judgment of the ECtHR case Delfi vs Estonia was delivered. The case has an important impact in the balancing of mainly two human rights: freedom of expression and the right to private and family life (to a lesser extent also freedom from discrimination, which is not so well protected under ECtHR). It found that Estonia had not infringed Article 10 (freedom of expression) when it fined Delfi for allowing the publication of user-generated comments, which incited hatred against an individual businessman.

The court makes an important distinction that the liability for user-generated content does not apply to:

“fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channelled by any input from the forum’s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby” (para. 116)

It only applies for large commercially run portals which creates its own content and asks people to comment on it. This seems to be a way to distinguish between a news portal and social media platforms like YouTube, Twitter or Facebook, although that is not entirely clear.

On other points as well, the Grand Chamber followed the previous decision, but perhaps gave a bit more context and reasoning. On anonymity the Court basically said that it is important, but not all-important because of the reach and speed of information dissemination on the Internet. It referred to the CJEU Google Spain case as an example of the renewed importance of privacy in the digital age. The Grand Chamber seems to have struck somewhat of a balance: if you are a large corporation that earns money on infringement of privacy of individuals (like Google or Delfi), then you cannot use freedom of expression to excuse your intrusions and have to set up sufficient safeguards against it.

In a way there is a larger point to be made: we need rule of law and courts to protect us also from the impact technology to human rights. The ECtHR in its decision is trying to rebalance the right to privacy against freedom of expression in a new context, but surely we are still very much in the beginning of the road.

Read:

Delfi vs Estonia Grand Chamber judgment

My 2013 analysis of the Delfi vs Estonia ECHR judgment