The applicant, Delfi AS, is a public limited company registered in Estonia. It owns one of the largest internet news sites in the country. On the site, readers were able to access the comments of other users of the site. Below one of the articles many readers had written highly offensive or threatening posts about the subject of the article. The Estonian court found that the comments were defamatory, and that Delfi was responsible for them.
Delfi complained that the Estonian civil courts found it liable for comments written by its readers.
The Court noted that Article 10 allowed freedom of expression to be interfered with by member States in order to protect a person’s reputation, as long as the interference was proportionate in the circumstances. The essential question was therefore whether this interference was proportionate, given the facts of the case. In assessing this question, the Court assessed four key issues:
First, the context of the posts. The comments had been insulting, threatening and defamatory. Given the nature of the article, the subject of the article 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.
Second, the steps taken by Delfi to prevent the publication of defamatory comments. The article’s webpage did state that the authors of comments would be liable for their content, and that threatening or insulting comments were not allowed.
Third, whether the actual authors of the comments could have been made liable for them. The subject of the article, in principle, have attempted to sue the specific authors of the offensive posts rather than Delfi. However, the identity of the authors would have been extremely difficult to establish, as readers could write comments without registering their names. Therefore, many of the posts were anonymous.
Finally, the court addressed the consequences of Delfi being made liable. The sanctions imposed by the Estonian courts against the company had been fairly small.
Considering all of these points, the Court held that making Delfi liable for the comments was a justified and proportionate interference with its right to freedom of expression. There had therefore been no violation of Article 10.