Holding an Internet news portal liable for offensive...

an Estonian company that owns one of the biggest online news sites in the country, published an article about a ferry company, the court said in a news release. The story covered the company’s decision to change its ferry routes to certain islands, which caused ice breaks where ice roads could have been made in the near future, it said. Opening of those roads, which could have made connections to the islands cheaper and faster, was postponed, and many readers posted highly offensive or threatening message about the ferry operator and its owner, it said. The owner sued Delfi and was granted judgment against it in June 2008, the court said. An Estonian court found that the comments were defamatory and that Delfi was responsible for them, said ECHR. It awarded damages to the ferry company, and Estonia’s Supreme Court rejected Delfi’s appeal, it said. The domestic courts rejected Delfi’s contention that under the EU e-commerce directive, its role as an ISP or storage host was purely technical, passive and neutral, finding instead the portal exercised control over the publication of the comments. The ECHR said it was up to national courts to resolve issues of whether the directive, as adopted into Estonian law, limited Delfi’s liability for the posts. The court said governments can interfere with freedom of expression to protect a person’s reputation, as long as the interference is proportionate in the circumstances. The main question was whether the interference in this case was proportionate, it said. The ECHR assessed four issues: (1) The context of the posts, which were insulting, threatening and defamatory. Given the nature of the article, Delfi should have expected offensive comments and exercised extra caution to avoid being held liable for damage to an individual’s reputation, the high court said. (2) The steps Delfi took to prevent publication of defamatory comments. Although its Web page said comment authors would be liable for their content; and that threatening or insulting statements weren’t allowed; and it also automatically deleted posts contained a series of vulgar words; and allowed users to tell administrators about offensive comments by clicking a button, the warnings weren’t enough to prevent a large number of people from submitting offensive comments that weren’t removed in good time. (3) Whether the actual authors of the comments could have been held liable for them. The ECHR said the ferry company owner could theoretically have tried to sue specific posters, but it would have been difficult to identify them because readers were allowed to comment anonymously. Making Delfi liable was more practical, and it was also reasonable since the news portal obtained financial benefit from comments being made. (4) The consequences of holding Delfi liable. Penalties imposed by the national courts against the company were fairly small, the ECHR said. It said the courts didn’t make any rulings about how the portal should protect third-party rights in the future in a way that could limit free speech. The ECHR said making Delfi liable for the comments was a justified and proportionate interference with its right to freedom of expression that didn’t breach the convention.