EHRM, 16-06-2015, nr. 64569/09

The applicant company argued that in today's world, Internet media content was increasingly created by the users themselves. User-generated content was of high importance — comments on news stories and articles often raised serious debates in society and even informed journalists of issues that were not publicly known, thereby contributing to the initiation of journalistic investigations. The opportunity of ‘everyone’ to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship.

As regards user-generated content, the applicant company was of the opinion that it was sufficient for a host to expeditiously remove third-party content as soon as it became aware of its illegal nature. If this was deemed insufficient by the Court, anonymous public speech would be prohibited or there would be arbitrary restrictions on commenters' freedom of communication by the intermediary, which would be impelled to err on the side of caution to avoid possible subsequent liability.

The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments. It argued that intermediaries were not best suited to decide upon the legality of user-generated content. This was especially so in respect of defamatory content since the victim alone could assess what caused damage to his reputation.

The applicant company argued that the interference with its freedom of expression — including its right to store information and to enable users to impart their opinions — was not prescribed by law. It submitted that there was no legislation or case-law stating that an intermediary was to be considered a publisher of content which it was not aware of. On the contrary, the applicable law expressly prohibited the imposition of liability on service providers for third-party content. In this connection, the applicant company referred to the Directive on Electronic Commerce, the Estonian Information Society Services Act and the Council of Europe Declaration on freedom of communication on the Internet. The Directive provided for limited and notice-based liability with take-down procedures for illegal content. Service providers were exempted from liability where, upon obtaining actual knowledge of illegal activities, they acted expeditiously to remove or disable access to the information concerned. Such removal or disabling of access had to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level (recital 46 of the Directive). The applicant company argued that this law was indisputably formulated with sufficient precision to enable a citizen to regulate his conduct. According to the applicant company, its behaviour had been in full compliance with the applicable law as it had removed the defamatory comments the same day it had been notified by the original plaintiff.

The applicant company further argued that even the existing tort law did not classify disseminators (postal workers, libraries, bookstores and others) as publishers. Thus, it remained entirely unclear how the existing tort law had been applied to a ‘novel area related to new technologies’ as held in the Chamber judgment, that is, to an online news portal operator providing a service enabling users to interact with journalists and each other and to contribute valuable ideas to the discussion of matters of public interest. There was no law imposing an obligation on the applicant company to proactively monitor user comments.

The applicant company did not dispute that the interference in question had a legitimate aim.

According to the applicant company, the interference was not necessary in a democratic society. It argued that as a result of the Chamber judgment it had two choices. Firstly, it could employ an army of highly trained moderators to patrol (in real time) each message board (for each news article) to screen any message that could be labelled defamatory (or that could infringe intellectual property rights, inter alia); at the end of the day, these moderators would, just in case, remove any sensitive comments and all discussions would be moderated so that they were limited to the least controversial issues. Otherwise, it could simply avoid such a massive risk and shut down these fora altogether. Either way, the technological capability to provide ordinary readers with an opportunity to freely comment on daily news and independently assume responsibility for their own comments would be abandoned.

The applicant company argued that the Supreme Court's judgment had had a ‘chilling effect’ on freedom of expression and that it had restricted the applicant company's freedom to impart information. It amounted to the establishment of an obligation to censor private individuals.

In support of its argument that the interference was not necessary in a democratic society, the applicant company relied on the following factors.

Firstly, it argued that the comments were reactions from members of the public to an event caused by the Saaremaa Shipping Company and not to the article as such. Furthermore, the article was a balanced and neutral one. It addressed an issue of great importance to the residents of the biggest island of Estonia affecting their everyday lives. The readers' negative reactions had not been caused by the article but by the shipping company.

Secondly, the applicant company had applied sufficient measures to prevent or remove defamatory comments; in the present case the comments in question had been removed on the same day that the applicant company had been notified of them.

Thirdly, the applicant company argued that the actual authors of the comments should bear responsibility for their contents. It disagreed with the Chamber's finding that it was difficult to establish the identity of the authors of the comments and contended that the authors' identities could be established in the ‘pre-trial taking of evidence’ procedure under Article 244 of the Code of Civil Procedure. Once the names and addresses of the authors were established, a claim against them could be brought without any difficulties.

Fourthly, the applicant company insisted that there was no pressing social need for a strict liability standard for service providers. It argued that there was a European consensus that no service provider should be liable for content it had not authored. Accordingly, the margin of appreciation afforded to the Contracting States in this respect was necessarily a narrow one. Furthermore, it considered that the modest sum it had been ordered to pay in compensation for non-pecuniary damage did not justify the interference. It also emphasised that if the applicant company enjoyed limited liability, the original plaintiff would not have been left without a remedy — he could have sued the actual authors of the comments. The applicant company objected to the establishment of private censorship and contended that it was sufficient to have a two-pronged system for the protection of the rights of third parties: a notice-and-take-down system and the possibility of bringing a claim against the authors of defamatory comments. There was no convincingly established ‘pressing social need’ for the liability of Internet service providers.

The applicant company also emphasised the importance of anonymity for free speech on the Internet; this encouraged the full involvement of all, including marginalised groups, political dissidents and whistle-blowers, and allowed individuals to be safe from reprisals.

Lastly, the applicant company contended that the domestic courts had clearly misinterpreted European Union (EU) law. It submitted that the Chamber judgment had created a collision of obligations and legal uncertainty since adhering to EU law on the issue of liability for host service providers would render the State liable under the Convention, whereas adhering to the test set out in the judgment would not be in conformity with EU law.

The Government made the following remarks in respect of the scope of the case. Firstly, according to the Court's case-law it was for the domestic courts to decide on the domestically applicable law and interpret it. Furthermore, interpretation of EU law was the task of the CJEU. The domestic courts, in reasoned decisions, had found that the Estonian Obligations Act, rather than the Directive on Electronic Commerce or the Information Society Services Act, was applicable. The Grand Chamber should also proceed from this presumption and the applicant company's allegations about the applicability of EU law were inadmissible. Secondly, the Government stressed that there existed a number of different types of Internet portals and the issue of their operators' liability could not be generalised. The present case was limited to the activities of the Delfi portal at the material time. In that connection the Government pointed out that Delfi had actively invited readers to comment on the articles it had chosen itself; it had published anonymous comments posted on those articles and in the same environment; and the comments could be amended or deleted only by Delfi. The applicant company's liability should be assessed in that specific context.

The Government emphasised that there was no dispute that the comments in question had been defamatory.

The Government noted that despite the applicant company's allegations to that effect, it had not been forced to disable anonymous comments or to change its business model. On the contrary, Delfi remained the largest Internet portal in Estonia; anonymous commenting was still possible on the portal and the number of comments had risen from 190,000 comments a month in 2009 to 300,000 in 2013. According to an article published on 26 September 2013, Delfi deleted 20,000 to 30,000 comments monthly (7 to 10% of all comments). Postimees, the second-largest portal, deleted up to 7% of a total of 120,000 comments. Both portals had five employees who dealt with taking down insulting comments. Since December 2013 Delfi had used a two-tier commenting environment where registered comments and anonymous comments were shown separately.

The Government insisted that the interference with the applicant company's rights had been ‘prescribed by law’. They referred to the domestic legislation and case-law summarised in paragraphs 32–36, 38 and 39 of the Chamber judgment, as well as the Court's relevant case-law as summarised in the Chamber judgment. The Government also pointed out that there was no Estonian case-law on the basis of which Delfi — which encouraged the posting of comments on the articles selected and published by it — could have presumed that the owner of an Internet portal as a new media publication was not liable for the damage caused by comments posted on its articles, which formed an integral part of the news and which only Delfi could administer. Further, by the time the domestic judgments had been handed down in the Delfi case, it was more than clear that Internet media had a wide influence over the public and that in order to protect the private life of others, liability rules had to apply to new media as well.

The Government reiterated that the applicant company's references to EU law and the Information Society Services Act should be disregarded. The Grand Chamber could only assess whether the effects of the interpretation of the Obligations Act were compatible with Article 10 § 2 of the Convention and could not assess the legislation the domestic courts had found not to be applicable. They also pointed out that the domestic courts had paid sufficient attention to the question whether the applicant company might be regarded as a caching or hosting service provider. However, they had found that this had not been the case. In particular, in the event of hosting, the service provider merely provided a data storage service, while the stored data and their insertion, amendment, removal and content remained under the control of the service users. In Delfi's commenting environment, however, commenters lost control of their comments as soon as they had entered them, and they could not change or delete them. Having regard also to the other aspects of the case — Delfi chose the articles and their titles; Delfi invited readers to comment and set the rules on commenting (including that the comments had to be related to the article); Delfi profited from advertising revenue the more comments were posted; Delfi also selectively monitored the comments — the domestic courts had found that Delfi had not acted only as a technical intermediary service provider and could not be classified either as a cache or as a host. The Government also emphasised that the CJEU had never adjudicated on a case similar to the Delfi case. In any event, even if the CJEU's case-law, such as L'Oréal and Others, was of relevance, it could be concluded that the role played by Delfi was an active one and it could not be granted the exemptions from liability under the Directive on Electronic Commerce.

The Government submitted that the interference with the applicant company's rights under Article 10 had the legitimate aim of protecting the honour of others.

As regards the question whether the interference was necessary in a democratic society, the Government emphasised at the outset the importance of the balance between Articles 10 and 8 of the Convention.

The Government referred extensively to the relevant reasoning of the Chamber judgment. In addition, they emphasised the following.

Firstly, as regards the context of the comments, the Government noted that the domestic courts had attached importance to the fact that the selection and publication of the news articles and the publication of readers' comments on these articles in the same environment had been part of the applicant company's professional activity as a discloser of information. Delfi invited readers to comment on its articles — often giving the articles provocative headlines and showing the number of comments on the main page immediately after the title of an article in bold red, so that commenting on an article would be more enticing — which in turn brought in advertising revenue.

Secondly, in respect of the measures applied by the applicant company, the Government stressed the importance of ensuring protection of third parties in relation to the Internet, which had become an extensive medium available to the majority of the population and used on a daily basis. The Government added that the applicant company's responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal — only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person's honour were no longer sufficient because the offensive comments had already reached the public and done the damage. The Government further argued that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason.

Thirdly, as regards the liability of the actual authors, the Government submitted that in civil proceedings — a remedy which was preferable to criminal remedies in defamation cases — investigative measures such as surveillance procedures were not accessible. In respect of the procedure for ‘pre-trial taking of evidence’, the Government argued that this was not a reasonable alternative in the case of anonymous comments. Firstly, the relevant Internet Protocol (IP) addresses could be not always established, for example if the user data or the comment had been deleted or an anonymous proxy had been used. Secondly, even if the computers used for posting the comments could be identified, it could still prove impossible to identify the persons who had made the postings, for example, in cases where a public computer, a Wi-Fi hotspot, a dynamic IP address or a server in a foreign country had been used, or for other technical reasons.

Fourthly, as regards the consequences of the domestic proceedings for the applicant company, the Government noted that Delfi had not needed to change its business model or disallow anonymous comments. In fact, the total number of comments — the majority of which were anonymous — had increased, while Delfi now employed five moderators. The Government also pointed out that the finding of liability was not aimed at obtaining huge or punitive awards of compensation. Indeed, in Delfi's case the compensation it had been obliged to pay for non-pecuniary damage was negligible (EUR 320) and in the subsequent case-law (see paragraph 43 above) the courts had held that finding a violation or deleting a comment could be a sufficient remedy. The Government concluded that the applicant company's civil liability had not had a ‘chilling effect’ on the freedom of expression, but was justified and proportionate.

Lastly, referring to the legislation and practice of several European countries, the Government contended that there was no European consensus on or trend towards excluding the liability of an Internet portal owner which acted as a content service provider and the discloser of anonymous comments on its own articles.

The Helsinki Foundation for Human Rights in Warsaw emphasised the differences between the Internet and the traditional media. It noted that online services like Delfi acted simultaneously in two roles: as content providers with regard to their own news and as host providers with regard to third-party comments. It submitted that moderation of user-generated content or the power of disabling access to it should not be regarded as having effective editorial control. Intermediary service providers should not be treated as traditional media and should not be subject to the same liability regime.

The Helsinki Foundation argued that authors should be accountable for their defamatory comments and the State should provide a regulatory framework making it possible to identify and prosecute online offenders. At the same time, it also contended that the possibility of publishing anonymously on the Internet should be regarded as a value.

Article 19 argued that one of the most innovative features of the Internet was the ease with which it allowed any person to express his or her views to the entire world without seeking the prior approval of publishers. Comment platforms enabled and promoted public debate in its purest form and this had very little to do with the provision of news. As a matter of fact and form, comments sections on news websites were better understood as newspapers appropriating the private discussion model that was native to the Internet rather than the other way around. Article 19 argued that making websites responsible for comments made by users would impose an unacceptable burden on websites.

Article 19 contended that the Directive on Electronic Commerce was meant to shield websites from liability for their users' comments, regardless of their own content. Article 19 insisted that while the normal liability rules should continue to apply to online news sites for the articles they published, they should be regarded as hosts — rather than publishers — for the purposes of the comment section on their website. As hosts, online news sites should in principle be immune from liability for third-party content in circumstances where they had not been involved in directly modifying the content at issue. They should not be held liable when they took all reasonable steps to remove content upon being notified, and they should not automatically be held liable simply because they decided not to remove a comment reported to them.

According to Access, anonymity and pseudonymity supported the fundamental rights of privacy and freedom of expression. A regulatory prohibition on anonymous use of the Internet would constitute an interference with the rights to privacy and freedom of expression protected under Articles 8 and 10 of the Convention, and blanket restrictions on anonymous and pseudonymous expression would impair the very essence of these rights. Access referred to the long-standing case-law of several countries protecting the right to anonymous communication, online and offline.

Furthermore, Access pointed out that services designed to provide enhanced confidentiality and anonymity while using the Internet had become more popular in the wake of revelations of mass surveillance online. It further argued that restricting Internet users to identified expression would harm the Internet economy, and referred to research which had concluded that the most important contributors online were those using pseudonyms.

As regards real-name policy, evidence from China showed that such a measure had caused a dramatic drop in the number of comments posted. Experience in Korea had demonstrated that real-name policy failed to meaningfully improve comments, whereas it was discriminatory against domestic Internet companies, as the users had sought alternative, international platforms that still allowed anonymous and pseudonymous comments.

Media Legal Defence Initiative (MLDI) made its submissions on behalf of twenty-eight non-governmental and media organisations and companies. It noted that the vast majority of online media outlets allowed reader comments. Through the comments facility, readers could debate the news amongst themselves as well as with journalists. This transformed the media from a one-way flow of communication into a participatory form of speech which recognised the voice of the reader and allowed different viewpoints to be aired.

MLDI noted that the boundaries between access and content were now increasingly blurred and ‘intermediaries’ included enhanced search services, online marketplaces, web 2.0 applications and social networking sites. From the users' perspective, they all facilitated access to and use of content and were crucial to the realisation of the right to freedom of expression.

MLDI contended that it was the States' task to ensure a regulatory framework that protected and promoted freedom of expression whilst also guarding other rights and interests. It provided a detailed overview of the regulatory framework for intermediary liability in the United States of America and in the EU. It noted that approaches in these jurisdictions were distinct, but nevertheless similar in that it was acknowledged that some level of protection for intermediaries was vital and that there was no requirement that intermediaries should monitor user content. It also noted that in some member States notice-and-take-down procedures had resulted in excessive liability on intermediaries and the taking down of legitimate content.

MLDI also elaborated on the emerging good practices in the regulation of user-generated content by online media. It pointed out that the majority of publications in North America and Europe did not screen or monitor comments before they were posted. They did, however, engage in some kind of post-publication moderation. Many online media outlets also ran filtering software and had mechanisms in place to block users who consistently broke the rules. The majority of online media, including leading European news outlets, required user registration but users were not required to disclose their real names.

The European Digital Media Association (EDiMA), the Computer & Communications Industry Association (CCIA Europe) and EuroISPA, a pan-European association of European Internet Services Providers Associations, made joint submissions as third parties.

The interveners argued that there was an established balance struck to date in legislation, international agreements and recommendations according to which, firstly, host service providers were exempt from liability for content in the absence of ‘actual knowledge’, and secondly, States were prohibited from requiring host providers to carry out general monitoring of content.

The interveners noted that whilst some information available online came from traditional publishing sources such as newspapers, and was rightly regulated by the law applicable to publishers, a large amount of online content came instead from individual speakers who could state their views unmediated by traditional editorial institutions. Comment facilities allowed for a right of reply and were thus fundamentally different from traditional publications, where no such right existed.

The interveners argued that the technology and operating processes for an online news discussion forum like Delfi were technologically indistinguishable from the hosting services such as social media/networking platforms, blogs/microblogs and others. Content composed and uploaded by users was automatically made publicly visible without human intervention. For many hosts considerations of scale made proactive human review of all user content effectively impossible. For small websites and start-ups, content control was likely to be particularly challenging and could be so costly as to be prohibitive.

The interveners argued that established law in the EU and other countries envisaged the notice-and-take-down system as a legal and practical framework for Internet content hosting. This balance of responsibilities between users and hosts allowed platforms to identify and remove defamatory or other unlawful speech, whilst at the same time enabling robust discussion on controversial topics of public debate; it made the operation of speech-hosting platforms practicable on a large scale.

The Court notes at the outset that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression. That is undisputed and has been recognised by the Court on previous occasions (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012, and Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, nos. 3002/03 and 23676/03, § 27, ECHR 2009). However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. Bearing in mind the need to protect the values underlying the Convention, and considering that the rights under Article 10 and 8 of the Convention deserve equal respect, a balance must be struck that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that liability for defamatory or other types of unlawful speech must, in principle, be retained and constitute an effective remedy for violations of personality rights.

On this basis, and in particular considering that this is the first case in which the Court has been called upon to examine a complaint of this type in an evolving field of technological innovation, the Court considers it necessary to delineate the scope of its inquiry in the light of the facts of the present case.

Firstly, the Court observes that the Supreme Court recognised (see § 14 of its judgment of 10 June 2009 as set out in paragraph 31 above) that ‘[p]ublishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the writer of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs’.

The Court sees no reason to call into question the above distinction made by the Supreme Court. On the contrary, the starting-point of the Supreme Court's reflections, that is, the recognition of differences between a portal operator and a traditional publisher, is in line with the international instruments in this field, which manifest a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audiovisual media on the one hand and Internet-based media operations on the other. In the recent Recommendation of the Committee of Ministers to the member States of the Council of Europe on a new notion of media, this is termed a ‘differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe’ (see § 7 of the Appendix to Recommendation CM/Rec(2011)7, quoted in paragraph 46 above). Therefore, the Court considers that because of the particular nature of the Internet, the ‘duties and responsibilities’ that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content.

Secondly, the Court observes that the Supreme Court of Estonia found that the ‘legal assessment by the courts of the twenty comments of a derogatory nature [was] substantiated. The courts [had] correctly found that those comments [were] defamatory since they [were] of a vulgar nature, degrade[d] human dignity and contain[ed] threats’ (see § 15 of the judgment as set out in paragraph 31 above). Further, in § 16 of its judgment, the Supreme Court reiterated that the comments degraded ‘human dignity’ and were ‘clearly unlawful’. The Court notes that this characterisation and analysis of the unlawful nature of the comments in question (see paragraph 18 above) is obviously based on the fact that the majority of the comments are, viewed on their face, tantamount to an incitement to hatred or to violence against L.

Consequently, the Court considers that the case concerns the ‘duties and responsibilities’ of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users — whether identified or anonymous — engage in clearly unlawful speech, which infringes the personality rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them.

Accordingly, the case does not concern other 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.

Furthermore, the Court notes that the applicant company's news portal was one of the biggest Internet media publications in the country; it had a wide readership and there was a known public concern about the controversial nature of the comments it attracted (see paragraph 15 above). Moreover, as outlined above, the impugned comments in the present case, as assessed by the Supreme Court, mainly constituted hate speech and speech that directly advocated acts of violence. Thus, the establishment of their unlawful nature did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful. It is against this background that the Court will proceed to examine the applicant company's complaint.

The Court notes that it was not in dispute between the parties that the applicant company's freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts' decisions. The Court sees no reason to hold otherwise.

Such an interference with the applicant company's right to freedom of expression must be ‘prescribed by law’, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be ‘necessary in a democratic society’.

The Court reiterates that the expression ‘prescribed by law’ in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001-VI; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A; and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II).

One of the requirements flowing from the expression ‘prescribed by law’ is foreseeability. Thus, a norm cannot be regarded as a ‘law’ within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able — if need be with appropriate advice — to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV, and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 141).

The level of precision required of domestic legislation — which cannot provide for every eventuality — depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Centro Europa 7 S.r.l. and Di Stefano, cited above, § 142). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, cited above, § 41, with further references to Cantoni v. France, 15 November 1996, § 35, Reports 1996-V, and Chauvy and Others v. France, no. 64915/01, §§ 43–45, ECHR 2004-VI).

In the present case the parties' opinions differed as to whether the interference with the applicant company's freedom of expression was ‘prescribed by law’. The applicant company argued that there was no domestic law according to which an intermediary was to be taken as a professional publisher of comments posted on its website by third parties regardless of whether it was aware of their specific content. On the contrary, the applicant company relied on the domestic and European legislation on Internet service providers and argued that it expressly prohibited the imposition of liability on service providers for third-party content.

The Government referred to the relevant provisions of the civil law and domestic case-law to the effect that media publishers were liable for their publications along with the authors. They added that there was no case-law on the basis of which the applicant company could have presumed that the owner of an Internet news portal as a new media publication was not liable for the comments posted on its articles. In their view the Court should proceed from the facts as established and the law as applied and interpreted by the domestic courts and not take account of the applicant company's references to EU law. In any event, the EU law referred to by the applicant company actually supported the domestic courts' interpretations and conclusions.

The Court observes that the difference in the parties' opinions as regards the law to be applied stems from their diverging views on the issue of how the applicant company is to be classified. According to the applicant company, it should be classified as an intermediary as regards the third-party comments, whereas the Government argued that the applicant company was to be seen as a media publisher, including with regard to such comments.

The Court observes (see paragraphs 112 and 113 above) that the Supreme Court recognised the differences between the roles of a publisher of printed media, on the one hand, and an Internet portal operator engaged in media publications for an economic purpose, on the other. However, the Supreme Court found that because of their ‘economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator [were] publishers/disclosers’ for the purposes of section 1047 of the Obligations Act (see § 14 of the judgment as set out in paragraph 31 above).

The Court considers that, in substance, the applicant argues that the domestic courts erred in applying the general provisions of the Obligations Act to the facts of the case as they should have relied upon the domestic and European legislation on Internet service providers. Like the Chamber, the Grand Chamber reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Centro Europa 7 S.r.l. and Di Stefano, cited above, § 140, and Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999-III). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004-I). Thus, the Court confines itself to examining whether the Supreme Court's application of the general provisions of the Obligations Act to the applicant's situation was foreseeable for the purposes of Article 10 § 2 of the Convention.

Pursuant to the relevant provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 33 to 38 above), as interpreted and applied by the domestic courts, the applicant company was considered a publisher and deemed liable for the publication of the clearly unlawful comments. The domestic courts chose to apply these norms, having found that the special regulation contained in the Information Society Services Act transposing the Directive on Electronic Commerce into Estonian law did not apply to the present case since the latter related to activities of a merely technical, automatic and passive nature, unlike the applicant company's activities, and that the objective pursued by the applicant company was not merely the provision of an intermediary service (see § 13 of the Supreme Court's judgment as set out in paragraph 31 above). In this particular context the Court takes into account the fact that some countries have recognised that the importance and the complexity of the subject matter, involving the need to ensure proper balancing of different interests and fundamental rights, call for the enactment of specific regulations for situations such as that pertaining in the present case (see paragraph 58 above). Such action is in line with the ‘differentiated and graduated approach’ to the regulation of new media recommended by the Council of Europe (see paragraph 46 above) and has found support in the Court's case-law (see, mutatis mutandis, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 63–64, ECHR 2011). However, although various approaches are possible in legislation to take account of the nature of new media, the Court is satisfied on the facts of this case that the provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act, along with the relevant case-law, made it foreseeable that a media publisher running an Internet news portal for an economic purpose could, in principle, be held liable under domestic law for the uploading of clearly unlawful comments, of the type at issue in the present case, on its news portal.

The Court accordingly finds that, as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delfi news portal is one of the largest in Estonia. Public concern had already been expressed before the publication of the comments in the present case and the Minister of Justice had noted that victims of insults could bring a suit against Delfi and claim damages (see paragraph 15 above). Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was ‘prescribed by law’ within the meaning of the second paragraph of Article 10 of the Convention.

The parties before the Grand Chamber did not dispute that the restriction of the applicant company's freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. The Court sees no reason to hold otherwise.

The applicant company argued that the domestic courts had interfered with its freedom of expression (right to impart information). It submitted that it had been forced to alter its business model completely and compelled to monitor every comment posted on its news portal — up to 10,000 comments a day. Although certain technical and manual procedures had already been applied prior to the Supreme Court's judgment, the scope of that activity and its legal implications had substantially changed as a result of the judgment concerned.

The applicant company argued that the interference with its freedom of expression had not been ‘prescribed by law’. It argued that the civil law provisions relied on by the Supreme Court embodied a negative obligation not to publish defamatory information. In the applicant company's view there was no obligation in the domestic law for it to pre-monitor all the content posted by third persons. The domestic courts' interpretation of the pertinent legislation had not met the requirement of foreseeability. The applicant company further argued that the liability of service providers for the disclosure of third party content was limited under the EU Directive on Electronic Commerce transposed into the Estonian legal order as the Information Society Services Act.

The applicant company accepted that the reputation and rights of L. had been engaged in the present case. However, it considered that the authors of the comments were liable for the possible infringement of L.'s rights. Holding the applicant company liable pursued no legitimate aim.

The applicant company argued that the restriction imposed on its freedom of expression was not necessary in a democratic society. It noted that the article published by it had been a balanced one, and thus the comments created and published by the commentators had not been provoked or triggered by the deeds of the applicant company. It argued that it was sufficient that the personal rights of individuals were protected by a two-limb system — firstly by the notice-and-take-down system operated by the service provider, and secondly by the possibility of bringing a claim against the authors of the comments.

Referring to the cases of Google France and Google and L'Oréal and Others of the Court of Justice of the European Union, the applicant company argued that it had not played an ‘active role’ but had merely stored comments on its server, set the terms of its service, been (indirectly) remunerated for that service and provided general information to its customers (readers, commentators).

The applicant company further referred to the Declaration and Article 15 of the Directive on Electronic Commerce, and argued that a host was not obliged to seek or monitor the hosted material. Such an overly burdensome obligation was contrary to freedom of expression and information. The fact that the applicant company had acted diligently and implemented various technical and manual procedures to reduce the number of illegal comments from the comments area of its portal should not mean that it was liable for illegal content posted by third parties. Otherwise, hosts who took no measures whatsoever to eliminate illegal material would be encouraged, and diligent hosts punished.

In conclusion, the applicant company asserted that it had only played a passive role in hosting the comments; it had had no active knowledge of the illicit comments, nor had it been or should have been aware of the illicit comments before the relevant notice by L., after which the applicant company had promptly removed the comments. Thus, the applicant company had acted in accordance with the standards to be observed by a diligent economic operator, and its freedom to impart information via the commenting area of its news portal had been disproportionately interfered with.

The Government submitted that Delfi continued to be one of the largest Internet portals in Estonia. The articles published by it were commented on extensively and people could do so without identifying themselves. Thus, the Government rejected the applicant company's argument that it had had to change its business model. Furthermore, the Government pointed out that the applicant company had also admitted monitoring comments on its own initiative on some occasions even before the proceedings giving rise to the present application.

The Government argued that the obligation to avoid causing harm had a clear basis in law and was confirmed by comprehensive case-law (see paragraphs 31 to 39 above). A media publication was usually liable for what it published, and its liability could not be precluded by a disclaimer published by the applicant company, as pursuant to the Obligations Act an agreement which precluded or restricted liability for damage caused unlawfully was void. Pursuant to the domestic law authors and owners of media publications had joint and several liability.

The Government maintained that since the publication of comments was under the control of the applicant company and in practice Delfi also exercised partial control, it was obliged to protect the honour of other persons, and the restriction concerned had a legitimate aim with regard to the applicant company.

The Government contended that the restriction was necessary in a democratic society. The vulgar, insulting and degrading value judgments contained in the comments in the present case had had no reasonable factual basis. There was therefore nothing in the comments which would have required the portal administrator to do any work to check their veracity. Since Delfi had not removed the posted comments on its own initiative, and it must have been aware that they were unlawful, the Estonian courts had justly found that Delfi's omission was unlawful. The disclaimer stating that the comments were not the opinion of the applicant company and that the authors of comments were responsible for their content did not preclude the applicant company's liability.

The Government argued that placing the obligation to monitor the comments and notify the portal administrator of offensive comments on the possibly injured parties was neither sufficient nor justified. Such a system did not ensure sufficient protection of the rights of third parties, as proven by the circumstances of the present case. Any information communicated via the Internet spread so quickly that by the time the inappropriate comments were finally deleted the public interest in the given news and the comments posted on it had waned. Measures taken weeks or even days later for protecting a person's honour were no longer sufficient, because offensive or unlawful comments had already reached the public and done their damage. Since controlling the Internet was an impossible task for an ordinary person, the party with control over a specific portal had the duty to take action where necessary to prevent violation of personality rights.

The Government noted that Estonia had chosen to apply less restrictive civil — as opposed to criminal — liability in defamation cases. However, even if a court adjudicating a civil case was able to identify the IP address of a computer and the address where the computer was located, it was extremely difficult to identify the person who actually wrote the comment. Thus, as Delfi did not identify the commentators, this made it too difficult for an injured person to have recourse to the civil courts against anonymous authors of comments. Furthermore, the Government considered that the State's enacting of a regulation providing for mandatory identification of commentators on an Internet portal would constitute an excessive interference. Thus, it was more suitable and proportionate in civil proceedings to place greater liability (joint and several) for defamation on a portal owner who provided content services. The Government pointed out in this context that Delfi was a profit-oriented company which had invited visitors to its portal to comment on its articles without identifying the authors of the comments. At the same time the income it earned depended on the advertisements published on the portal, which, in turn, depended on the number of comments. The Government referred to the domestic courts' finding that Delfi had not acted with the due diligence required in commerce — it had not taken measures which would have precluded the risk of violation of other persons' rights. At the same time, the domestic courts had not prescribed to Delfi how it should perform its duties, leaving this matter for the applicant company and considering that there were various means of doing this.

The Government argued that the applicant company was not a hosting service provider for the purposes of the Information Society Services Act when publishing comments posted on Delfi's articles. A hosting service provider offered merely a data storage service, while the stored data, their insertion, removal and content (including ability to remove or change the stored data) remained under the control of service users. In the Delfi commenting environment those commenting lost control of their comments as soon as they had entered them, and commenters could not change or delete their comments. Thus, Delfi was not a technical intermediary in respect of comments, but a content service provider. It deleted and modified comments if needed, and had also done so prior to the Supreme Court's judgment, playing therefore an active role of such a kind as to give it knowledge of, or control over, the data relating to the comments to its articles. The fact that Delfi had taken measures to minimise insulting comments, for example by screening, demonstrated that Delfi had actually been aware of its liability.

The Government also pointed out that the comments in question had not attacked the public limited company concerned, but a member of its supervisory board personally, and could not therefore be justified by the exercise by the press of its role of a ‘public watchdog’. The comments had resorted to offensive and intemperate language and had gone beyond a generally acceptable degree of exaggeration or provocation; they had not stimulated any reasonable public discussion.

Lastly, the Government considered that the sum the applicant company had been ordered to pay L. as compensation for non-pecuniary damage (corresponding to EUR 320) had not had a ‘chilling effect’ on the freedom of expression.

The Court notes that the focus of the parties' arguments differed as regards the applicant company's role in the present case. The Government were of the opinion that the applicant company was to be considered the discloser of the defamatory comments, whereas the applicant company considered that the comments had been published by third parties and the applicant company's freedom to impart information had been interfered with (see paragraphs 48 and 49 above). Regardless of the exact role to be attributed to the applicant company's activities, it is not, in substance, in dispute between the parties that the domestic courts' decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention. The Court sees no reason to hold otherwise (see also paragraph 50 above).

Such an interference with the applicant company's right to freedom of expression must be ‘prescribed by law’, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be ‘necessary in a democratic society’.

The Court reiterates that a norm cannot be regarded as a ‘law’ within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able — if need be with appropriate advice — to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV)

The Court further reiterates that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover, and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, loc. cit., with further references to Cantoni v. France, 15 November 1996, § 35, Reports of Judgments and Decisions 1996-V, and Chauvy and Others v. France, no. 64915/01, §§ 43–45, ECHR 2004-VI).

The Court notes that in the present case the parties' opinions differed as to the question whether the interference with the applicant company's freedom of expression was ‘prescribed by law’. The applicant company argued that the domestic law did not entail a positive obligation to pre-monitor content posted by third persons, and that its liability was limited under the EU Directive on Electronic Commerce. The Government referred to the pertinent provisions of the civil law and domestic case-law, under which media publications were liable for their publications along with the authors.

As regards the applicant company's argument that its liability was limited under the EU Directive on Electronic Commerce and the Information Society Services Act, the Court notes that the domestic courts found that the applicant company's activities did not fall within the scope of these acts. The Court reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among others, Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports of Judgments and Decisions 1998-VIII).

The Court further notes that pursuant to the pertinent provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 31 to 36 above), as interpreted and applied by the domestic courts, the applicant company was deemed liable for the publication of the defamatory comments. Although these provisions are quite general and lack detail in comparison with, for example, the Information Society Services Act (see paragraph 37 above), the Court is satisfied that they, along with the pertinent case-law, made it clear that a media publisher was liable for any defamatory statements made in its media publication. The fact that in the present case publication of articles and comments on an Internet portal was also found to amount to journalistic activity and the administrator of the portal as an entrepreneur was deemed to be a publisher can be seen, in the Court's view, as application of the existing tort law to a novel area related to new technologies (compare, for example, Bernh Larsen Holding AS and Others v. Norway, no. 24117/08, § 126, 14 March 2013, where the Court saw no reason to question the domestic court's interpretation, according to which legal provisions originally conceived in respect of hard copies of documents were also deemed to apply to electronically stored documents). This does not mean that the provisions of the civil law in question did not constitute a sufficiently clear legal basis for the applicant company's liability, or that gradual clarification of legal rules was outlawed (compare, mutatis mutandis, Radio France and Others v. France, no. 53984/00, §§ 20 and 30, ECHR 2004-II). Indeed, general provisions of law can at times make for a better adaptation to changing circumstances than can attempts at detailed regulation (see, for comparison, Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, §§ 20, 21 and 38, ECHR 2009, where the ‘Internet publication rule’ relied on a rule originally dating from the year 1849, and Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 60–68, ECHR 2011 (extracts), where the lack of reference to Internet publications in the otherwise quite detailed media law gave rise to an issue of lawfulness under Article 10 of the Convention).

The Court accordingly finds that, as a professional publisher, the applicant company must at least have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delfi news portal is one of the largest in Estonia, and also that a degree of notoriety has been attributable to comments posted in its commenting area. Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore finds that the interference in issue was ‘prescribed by law’ within the meaning of the second paragraph of Article 10 of the Convention.

The Court considers that the restriction of the applicant company's freedom of expression pursued a legitimate aim of protecting the reputation and rights of others. The Court has taken note of the applicant company's argument about the liability of the actual authors of the comments. However, in the Court's view the fact that the actual authors were also in principle liable does not remove the legitimate aim of holding the applicant company liable for any damage to the reputation and rights of others. The question of whether the applicant company's rights under Article 10 were excessively restricted in the present case by holding it liable for comments written by third parties is a question of whether the restriction was ‘necessary in a democratic society’, to be dealt with below.