Delfi v Estonia

Delfi AS v Estonia (ECtHR)

Area: Defamation / Libel

Principle: A site, as publisher of defamatory comments, can be held in equal liability to the author of defamatory comments where such a site exercises some degree of control over those comments. (i.e. A site that moderates user-authored comments can become liable for them as a publisher.)

In the case of Delfi, an Estonian online news outlet was held liable for defamation based on comments written below the an article on its site. The ECtHR held that it was not a violation of the Free Expression rights of the site to treat them as a “publisher” of the content.

Delfi posted an article in 2006 about the destruction of an ice road between Estonia’s mainland to it’s islands. The destruction was carried out by a ferry company in such a way that could be considered to be financially beneficial to them. The article prompted 185 comments, approximately 20 of which could be considered threatening or offensive to the sole shareholder of the ferry company.

The shareholder sent a notice to Delfi demanding damages and requesting that they take down the comments. Delfi complied with the takedown request, but did not pay him the requested amount. The shareholder then filed suit against Delfi. After several rounds of appeal, the Estonian national courts held that Delfi could be considered the ‘publisher’ of the comments, and was thus liable for defamation.

Delfi took the case to the European Court of Human rights, who held that the Estonian courts were correct in holding that Delfi was the “publisher” or “discloser” of the comments - both of which could properly serve as the basis for a defamation lawsuit.

Delfi has a number of distinguishing factors that mean that the principle does not necessarily apply automatically to every other site. For instance, the comments on Delfi’s website were so notorious for being offensive and vulgar that other Estonian publications had commented openly on the matter and even raised it with Estonian officials.

Despite knowing about their offensive comments an having an infrastructure that let them moderate comments, Delfi left the comments up on their website for a total of six weeks before being removed.

Court held that Delfi alone would be held liable for the damages, given the difficulty of tracking down the anonymous commenters from the site.