The Chamber of the First Section of the European Court of Human Rights (the “ECHR”) has recently handed down a controversial decision which has the potential to impose liability on internet portals for comments posted by third parties, despite effective take-down procedures being in place.
The ECHR found Estonia’s most popular Internet news portal, Delfi AS (“Delfi”), liable in damages for defamatory and anonymous comments posted by third parties on its websites.
This decision also has the potential to seriously affect the future of online comment threads.
Delfi posted an article in 2006 covering route alterations by SLK, a ferry company which provided public transportation between mainland Estonia and two of the country’s larger islands. The article also referred to how the company had “destroyed planned ice roads”, which are public roads over the sea.
Whilst the article itself was not defamatory, it attracted 185 comments, about twenty of which were threatening and offensive posts against the company’s owner and sole shareholder. The comments were taken down the same day following a request from SLK’s lawyers, but Delfi refused an additional claim for non-pecuniary damages of €32,000. Estonia’s County Court found against Delfi and awarded SLK’s owner damages in the sum of €320 for “[violation] of his personality rights”.
The matter ultimately came before the ECHR which handed down its decision in October 2013. This decision has yet to be finalised. The ECHR considered whether the Estonian Supreme Court had unjustifiably and disproportionately restricted Delfi’s right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms…