I. THE CIRCUMSTANCES OF THE CASE
B. Article and comments published on the Internet news portal
16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “SLK” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. At the material time, L. was a member of the supervisory board of SLK and the company’s sole or majority shareholder.
17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed at L.
18. On 9 March 2006 L.’s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments.
“1. (1) there are currents in [V]äinameri
(2) open water is closer to the places you referred to, and the ice is thinner.
Proposal – let’s do the same as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag
2. bloody shitheads…
they’re loaded anyway thanks to that monopoly and State subsidies and have now started to worry that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!
3. good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!
4. [little L.] go and drown yourself
5. aha… [I] hardly believe that that happened by accident… assholes fck
6. rascal!!! [in Russian]
7. What are you whining for, knock this bastard down once and for all[.] In future the other ones … will know what they risk, even they will only have one little life.
8. … is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he.
9. “a good man lives a long time, a shitty man a day or two”
10. If there was an ice road, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port … instead, fcking monkey, I will cross [the strait] anyway and if I drown, it’s your fault
11. and can’t anyone stand up to these shits?
12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.
13. wonder whether [L.] won’t be knocked down in Saaremaa? screwing one’s own folk like that.
14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this.
Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the State is powerless towards them – it is really them who govern the State), because they only live for today. Tomorrow, the flood.
15. this [V.] will one day get hit with a cake by me.
damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that … a pig is going to be slaughtered. no way
16. bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!
17. Estonian State, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas … and this cannot at all be compared to a ram’s Michaelmas. Actually feel sorry for [L.] – he’s a human, after all… 😀 😀 😀
18. … if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed … will he [then] dare to act like a pig for the third time? 🙂
19. fucking bastard, that [L.]… could have gone home with my baby soon … anyway his company cannot guarantee a normal ferry service and the prices are such that … real creep … a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year
20. you can’t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the State and [L.] do not care about the people’s opinion) … just for fun, with no greed for money – I pee into [L.’s] ear and then I also shit onto his head. :)”
19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company.
20. On 23 March 2006 the applicant company responded to the request from L.’s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages.
C. Civil proceedings against the applicant company
21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company.
26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal’s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had indicated on its website that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments.
27. The County Court found that the news article itself published on the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory, and impaired L.’s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L.’s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage.
28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims.
29. The Court of Appeal rejected the applicant company’s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to post comments. Thus, the applicant company was a provider of content services rather than of technical services.
30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal’s judgment in substance, but partly modified its reasoning.
FOR THESE REASONS, THE COURT
Holds, by fifteen votes to two, that there has been no violation of Article 10 of the Convention.
JOINT DISSENTING OPINION OF JUDGES SAJÓ AND TSOTSORIA
The nature of the comments
12. Throughout the whole judgment the description or characterisation of the comments varies and remains non-specific. The Supreme Court of Estonia has its own interpretation: it refers to “insult in order to degrade” and “degrade human dignity and ridicule a person” and finds Delfi liable for disrespecting the honour and good name of the person concerned. According to paragraph 117 of the present judgment, “the impugned comments … mainly constituted hate speech and speech that directly advocated acts of violence” (see also paragraph 140). However, according to paragraph 130 (“the legitimate aim of protecting the reputation and rights of others”), the offence in issue concerned the reputation and unspecified rights of others. It is not clear to which comments the Court is referring. Does the comment “a good man lives a long time, a shitty man a day or two” (comment no. 9 – see paragraph 18 of the judgment) amount to advocating violence?
13. It is unfortunate that the characterisation of the comments remains murky. What is really troubling here is never spelled out: that some of the comments are racist. Comment no. 2 is a recital of anti-Semitic stereotypes ending with a reference to the annihilation by fire of the addressee as a Jew.
Document data: application No. 64569/09, Grand Chamber judgment of 16.06.2015. Link: http://hudoc.echr.coe.int/eng?i=001-155105 Also available in French, Estonian etc.