1. LIABILITY FORLIABILITY FOR
USER GENERATED CONTENTUSER GENERATED CONTENT
ON AN ONLINE NEWS PLATFORMON AN ONLINE NEWS PLATFORM
THE DELFI CASETHE DELFI CASE
Dirk VOORHOOFDirk VOORHOOF
INGER HØEDT-RASMUSSENINGER HØEDT-RASMUSSEN
Ghent UniversityGhent University
Copenhagen UniversityCopenhagen University

2. Somewhere in EuropeSomewhere in Europe
EstoniaEstonia
Mainland - islandsMainland - islands
Ice roadsIce roads

3. It started with anIt started with an
article in an onlinearticle in an online
newspaper : Delfinewspaper : Delfi
Should the iceroadsShould the iceroads
as public roads be kept open ?as public roads be kept open ?
http://http://www.youtube.com/watch?v=z_Y6ijrnn8swww.youtube.com/watch?v=z_Y6ijrnn8s
http://http://www.youtube.com/watch?v=MdESlRLELns&gl=BEwww.youtube.com/watch?v=MdESlRLELns&gl=BE

4. Delfi AS is the owner of Delfi, an Internet news portal
that publishes up to 330 news articles a day.
Delfi is one of the largest news portals on the
Internet in Estonia. It publishes news in Estonian
and Russian in Estonia and also operates in
Latvia and Lithuania
User Generated Content (UGC)
http://www.delfi.eehttp://www.delfi.ee//
+ disclaimer on liability UGC+ disclaimer on liability UGC
+ “Notice And Take Down”-system (NATD)+ “Notice And Take Down”-system (NATD)
+ request no hate speech, no insult …+ request no hate speech, no insult …
+ technical filtering obscenities+ technical filtering obscenities

5. The news article on Delfi
In 2006 Delfi published an article on its portal
under the heading ‘SLK Destroyed Planned Ice
Road’ (SLK = Saaremaa Shipping Company)
Mr. L. is a board-member and majority shareholder
(the “face” of SLK) – well-known for his opposition
against a bridge and considered responsible for the
(annual) ice breaking of winter routes

6. Angry and offensive online comments
The article attracted 185 comments.
About 20 of them contained personal threats
and offensive language directed against L.

7. More than one month later Mr. L. requested for
removal of 20 comments and claimed 32.000 EUR
as compensation of damages (reputation)
Comments were manifestly defamatory and incited
to hatred or even to violence against Mr. L.
Delfi immediately removed the comments

8. Crucial question regarding damages
Who’s liable
- authors/users having posted the insulting hate
speech on the news forum (content provider?)
- Delfi for having created a platform for UGC (as
ISP or as online publisher?)

9. Directive E CommerceDirective E Commerce
Section 4: Liability ofSection 4: Liability of
intermediaryintermediary
service providersservice providers
Article 12-15Article 12-15

10. Directive E CommerceDirective E Commerce
Section 4: Liability of intermediary serviceSection 4: Liability of intermediary service
providers (ISP), Article 12-15providers (ISP), Article 12-15
– Aim to exempt ISP’s from liability underAim to exempt ISP’s from liability under
certain conditionscertain conditions
– Otherwise: risk of chilling effectOtherwise: risk of chilling effect
+ financial/economic impact+ financial/economic impact

11. Directive E CommerceDirective E Commerce
 Section 4: Liability of intermediary serviceSection 4: Liability of intermediary service
providers restricted, Article 12-15providers restricted, Article 12-15
– HorizontalHorizontal derogation of liabilityderogation of liability
- Criminal Law- Criminal Law
- Civil Law- Civil Law
- Commercial Law- Commercial Law
- Advertising Law/Fair Trade Practices- Advertising Law/Fair Trade Practices
- Copyright Law- Copyright Law

12. Directive E CommerceDirective E Commerce
Art. 12: Mere ConduitArt. 12: Mere Conduit
= transmission in network, access to network= transmission in network, access to network
The ISP is not liableThe ISP is not liable for the information transmittedfor the information transmitted
if:if:
a) does not initiate the transmissiona) does not initiate the transmission
b) does not select the receiver of the serviceb) does not select the receiver of the service
c) does not select/modify the informationc) does not select/modify the information
contained in the transmissioncontained in the transmission

13. Directive E CommerceDirective E Commerce
Art. 13: CachingArt. 13: Caching
Activity of ISP of automatic, intermediate andActivity of ISP of automatic, intermediate and
temporary storage of information for sole purposetemporary storage of information for sole purpose
of making more efficient the transmissionof making more efficient the transmission
ISP is not liableISP is not liable for the information transmitted iffor the information transmitted if
a) does not modify the informationa) does not modify the information
(..)(..)
e) the provider acts expeditiously to remove or toe) the provider acts expeditiously to remove or to
disable access to the information it has storeddisable access to the information it has stored
uponupon actual knowledgeactual knowledge that thethat the initial sourceinitial source
has been removed/access has been disabled,has been removed/access has been disabled, OROR
when awhen a court or administrative authoritycourt or administrative authority hashas
ordered such removal or disablementordered such removal or disablement

14. Directive E CommerceDirective E Commerce
Art. 14: HostingArt. 14: Hosting
= activity of ISP of the storage of information= activity of ISP of the storage of information
provided by and at request of a recipient of aprovided by and at request of a recipient of a
serviceservice
The ISP is not liableThe ISP is not liable for the information transmittedfor the information transmitted
if:if:
a) does not have actual knowledge of illegal activitya) does not have actual knowledge of illegal activity
or informationor information
b) the provider, upon obtaining such knowledge orb) the provider, upon obtaining such knowledge or
awareness, acts expeditiously to remove or toawareness, acts expeditiously to remove or to
disable access to the informationdisable access to the information
(NATD-procedure)(NATD-procedure)

15. Directive E CommerceDirective E Commerce
Art. 15: No generalArt. 15: No general
obligation to monitorobligation to monitor
Member states shall not imposeMember states shall not impose
a general obligation ona general obligation on
providers to monitor theproviders to monitor the
information which theyinformation which they
transmit or store, nor atransmit or store, nor a
general obligation to seekgeneral obligation to seek
actively facts or circumstancesactively facts or circumstances
indicating illegal activityindicating illegal activity

16. Directive E CommerceDirective E Commerce
Art. 15: No general obligation toArt. 15: No general obligation to
monitor, butmonitor, but
Member states may establish obligations forMember states may establish obligations for
ISP’s promptly to inform competent publicISP’s promptly to inform competent public
authorities of alleged illegal activities orauthorities of alleged illegal activities or
information provided by recipients of theirinformation provided by recipients of their
service or obligations to communicate theservice or obligations to communicate the
competent authorities, at their request,competent authorities, at their request,
information enabling the identification ofinformation enabling the identification of
recipients of their servicesrecipients of their services

17. Directive E CommerceDirective E Commerce
Art. 12-14Art. 12-14
Restrictions on liability of ISP’s do notRestrictions on liability of ISP’s do not
affect the possibility for a court oraffect the possibility for a court or
administrative authority of requiringadministrative authority of requiring
the ISP to terminate or prevent anthe ISP to terminate or prevent an
infringement (or establishinginfringement (or establishing
procedures governing the removal orprocedures governing the removal or
disabling of access to information)disabling of access to information)

18. Directive E CommerceDirective E Commerce
Art. 16: Codes of conductArt. 16: Codes of conduct
Member states shall encourageMember states shall encourage
- drawing up of codes of conduct at- drawing up of codes of conduct at
Community level by trade, professional orCommunity level by trade, professional or
consumer organisationsconsumer organisations
- esp. codes of conduct regarding the- esp. codes of conduct regarding the
protection of minors and human dignityprotection of minors and human dignity

19. Council of Europe Declaration 2003Council of Europe Declaration 2003
Freedom of Communication on the InternetFreedom of Communication on the Internet
1. Content rules for the Internet1. Content rules for the Internet
No further than those applied to other meansNo further than those applied to other means
of content deliveryof content delivery
2. Self- or co-regulation2. Self- or co-regulation
States should encourage…States should encourage…
3. Absence of prior state control3. Absence of prior state control

20. Council of Europe Declaration 2003Council of Europe Declaration 2003
Freedom of Communication on the InternetFreedom of Communication on the Internet
4. Removal of barriers to the participation of individuals4. Removal of barriers to the participation of individuals
…… foster access, afordable, no discriminationfoster access, afordable, no discrimination
5. Freedom to provide services via the internet5. Freedom to provide services via the internet
6. Limited liability of service providers6. Limited liability of service providers
No general obligation to monitorNo general obligation to monitor
No liability if only transmissionNo liability if only transmission
Notice and take down or disable accessNotice and take down or disable access
when aware of illegal contentwhen aware of illegal content
Possibility of issuing injunctionsPossibility of issuing injunctions

21. Council of Europe Declaration 2003Council of Europe Declaration 2003
Freedom of Communication on the InternetFreedom of Communication on the Internet
7: Anonymity7: Anonymity
In order to ensure protection against online surveillance andIn order to ensure protection against online surveillance and
to enhance the free expression of information and ideas,to enhance the free expression of information and ideas,
member states should respect the will of users of themember states should respect the will of users of the
Internet not to disclose their identity.Internet not to disclose their identity.
This does not prevent member states from taking measuresThis does not prevent member states from taking measures
and co-operating in order to trace those responsible forand co-operating in order to trace those responsible for
criminal acts, in accordance with national law, thecriminal acts, in accordance with national law, the
Convention for the Protection of Human Rights andConvention for the Protection of Human Rights and
Fundamental Freedoms and other international agreementsFundamental Freedoms and other international agreements
in the fields of justice and the policein the fields of justice and the police..

22. DelfiDelfi
Delfi liable for offensive comments postedDelfi liable for offensive comments posted
by readers – UGC?by readers – UGC?
IF DELFI was acting as an ISP – HostIF DELFI was acting as an ISP – Host
provider – EU Law …provider – EU Law …
Exempted from liability ?Exempted from liability ?

23. Delfi arguments : ISP !Delfi arguments : ISP !
UGCUGC
Automatic download, not edited, not moderatedAutomatic download, not edited, not moderated
NATD system was installed and functionedNATD system was installed and functioned
+ technical filtering of obscene words+ technical filtering of obscene words
+ victim of defamation could notify+ victim of defamation could notify
Delfi argued that it acted as an ISP - storage host whoseDelfi argued that it acted as an ISP - storage host whose
role was merely technical, passive and neutralrole was merely technical, passive and neutral
Portal exercised limited control over the publication ofPortal exercised limited control over the publication of
comments and applied NATD in accordance with ISP-comments and applied NATD in accordance with ISP-
responsibilityresponsibility

24. Estonian court decisionsEstonian court decisions
County Court agreed and considered Delfi as ISP
Delfi could not be considered the publisher of the
comments, nor did it have any obligation to monitor
them
Overruled by Tallin Court of Appeal
rejecting Delfi’s argument that it acted under EUrejecting Delfi’s argument that it acted under EU
Directive 2000/31/EC on Electronic Commerce, asDirective 2000/31/EC on Electronic Commerce, as
implemented by the Estonian Information Societyimplemented by the Estonian Information Society
Services Act (ISS Act)Services Act (ISS Act)

25. Tallin Court of Appeal and
Estonian Supreme Court
The measures taken by Delfi were
insufficient to protect right to reputation of others.
Delfi was a provider of content services rather than of
technical services.
Delfi had an economic interest in the comments and
had acted similarly to a publisher of printed media.
L. was free to choose against whom to bring the suit, in
casu against Delfi.
Delfi should have prevented the comments from
having been published and failed to remove the
comments on its own initiative.

26. Tallin Court of Appeal and
Estonian Supreme Court
Delfi is not an ISP
Delfi itself was to be considered
the publisher of the comments, and it could not avoid
responsibility by publishing a disclaimer that it was not
liable for the content of the comments.
An information society service provider, falling under
that ISS Act and the Directive on Electronic Commerce,
had neither knowledge of nor control over
information which was transmitted or stored.

27. Tallin Court of Appeal and
Estonian Supreme Court
Delfi is not an ISP
A provider of content services, like Delfi, governs the
content of information that was being stored, by
integrating the comment environment into its
news portal and invited users to post comments.

28. Delfi liable, award of damages 320 EURDelfi liable, award of damages 320 EUR
What to do ?
Important principle!
Introduce a case at European level because
Estonian authorities had breached European law?
Which instance ?

29. Delfi liable, award of damages 320 EURDelfi liable, award of damages 320 EUR
Brussels, Luxembourg or Strasbourg?
Non-application of E Commerce Directive?
Complaint European Commission ?
Case to CJEU ?
Breach of freedom of expression
Art. 11 EU Charter ?
Art. 10 ECHR ?

30. Delfi AS v. EstoniaDelfi AS v. Estonia
Delfi logded complaint in Strasbourg ECtHR
for alleged violation of Article 10 ECHR
Was interference
- prescribed by law
- pursuing a legitimate aim
- “necessary in a democratic society” ?

31. Delfi AS v. EstoniaDelfi AS v. Estonia
ECtHR 10 October 2013ECtHR 10 October 2013
First SectionFirst Section
ECtHR accepted thatECtHR accepted that the domestic courts had rejectedthe domestic courts had rejected
the portal’s argument that, under EU Directivethe portal’s argument that, under EU Directive
2000/31/EC on Electronic Commerce, its role as an2000/31/EC on Electronic Commerce, its role as an
Internet society service provider or storage host wasInternet society service provider or storage host was
merely technical, passive and neutral,merely technical, passive and neutral, finding thatfinding that
the portal exercised control over the publicationthe portal exercised control over the publication
of comments.of comments.

32. Delfi AS v. EstoniaDelfi AS v. Estonia
Delfi complained that being heldDelfi complained that being held
liable for the comments of its readers breached itsliable for the comments of its readers breached its
right to freedom of expression – Art. 10 ECHRright to freedom of expression – Art. 10 ECHR
The Court held, unanimously, that there had beenThe Court held, unanimously, that there had been
no violation of Article 10no violation of Article 10 (freedom of expression)(freedom of expression)
of the Convention. It held that the finding of liabilityof the Convention. It held that the finding of liability
by the Estonian courts was aby the Estonian courts was a justified andjustified and
proportionate restrictionproportionate restriction on the portal’s right toon the portal’s right to
freedom of expression.freedom of expression.

33. Delfi AS v. EstoniaDelfi AS v. Estonia
No violation of Article 10No violation of Article 10
in particular, because:in particular, because:
- the comments were highly offensive;- the comments were highly offensive;
- the portal failed to prevent them from becoming- the portal failed to prevent them from becoming
public, profited from their existence, but allowed theirpublic, profited from their existence, but allowed their
authors to remain anonymous;authors to remain anonymous;
- and, the fine imposed by the Estonian courts was not- and, the fine imposed by the Estonian courts was not
excessive.excessive.

34. Delfi AS v. EstoniaDelfi AS v. Estonia
Judgment First Section ECtHR 10 October 2013Judgment First Section ECtHR 10 October 2013
Request for referral by Delfi + support by 70Request for referral by Delfi + support by 70
organisations in sector of media, journalism, internetorganisations in sector of media, journalism, internet
and human right (8 January 2014)and human right (8 January 2014)
Panel of 5 judges : serious matter ECHR / society.Panel of 5 judges : serious matter ECHR / society.
On 17 February 2014 the case was referred to theOn 17 February 2014 the case was referred to the
Grand ChamberGrand Chamber
The Court will be holding a Grand ChamberThe Court will be holding a Grand Chamber
hearing in this case on 9 July 2014 at 9.15 a.m.hearing in this case on 9 July 2014 at 9.15 a.m.

35. Is there a duty to pre-monitor
UGC on online media fora?
- Economic and financial aspects
- Technical aspects
- Democracy, Freedom of Information
- Right of anonymity?
- European perspective (28 Member States)
- International, global perspectives

36. “Duties of care” ?
Delfi took no specific measures such as
- a requirement of prior registration of users before they
were allowed to post comments
- monitoring the (anonymous) comments before making
them public
- or speedy review of comments after posting

37. Legal obligation or self-regulation:
same impact for the users ?
(pre-monitoring)
Why making a problem of pre-monitoring UGC as a
consequence of liability based on the law, while if
Delfi would pre-monitor on its own initiative there
would be no legal discussion !?

38. Delfi AS v. Estonia – more infoDelfi AS v. Estonia – more info
http://inforrm.wordpress.com/2013/10/29/treating-a-news-portal-as-publisher-http://inforrm.wordpress.com/2013/10/29/treating-a-news-portal-as-publisher-
of-users-comment-may-have-far-reaching-consequences-for-online-freedom-of-of-users-comment-may-have-far-reaching-consequences-for-online-freedom-of-
expression-dirk-voorhoof/expression-dirk-voorhoof/
http://inforrm.wordpress.com/2014/01/15/news-delfi-v-estonia-liability-for-user-http://inforrm.wordpress.com/2014/01/15/news-delfi-v-estonia-liability-for-user-
comments-applicant-seeks-referral-to-grand-chamber/comments-applicant-seeks-referral-to-grand-chamber/
http://www.psw.ugent.be/cms_global/uploads/publicaties/dv/REQUEST%20FORhttp://www.psw.ugent.be/cms_global/uploads/publicaties/dv/REQUEST%20FOR
%20REFERRAL%20TO%20THE%20GRAND%20REFERRAL%20TO%20THE%20GRAND
%20CHAMBER_DELFI_2014%2001%2008%20FINALDV.pdf%20CHAMBER_DELFI_2014%2001%2008%20FINALDV.pdf
http://www.mediadefence.org/sites/default/files/Delfi%20Support%20Letter.pdfhttp://www.mediadefence.org/sites/default/files/Delfi%20Support%20Letter.pdf
http://inforrm.wordpress.com/2014/02/18/news-court-of-human-rights-grand-http://inforrm.wordpress.com/2014/02/18/news-court-of-human-rights-grand-
chamber-to-hear-delfi-case/#more-25347chamber-to-hear-delfi-case/#more-25347