The Delfi v. Estonia decision, issued in June of 2015 by the European Court of Human Rights, marked a low point in that court’s caselaw regarding freedom of expression on the Internet. This week, a new European Court ruling slightly qualifies and narrows the scope of Delfi. The outcome of the new decision is not as detrimental as one could have anticipated; however, it looks to be another step toward requiring European Internet intermediaries to monitor user-generated content on their sites.
Background: The Delfi decision of 2015
In Delfi, the Grand Chamber ruled that holding an online news portal liable as the publisher of unlawful comments posted by its users was consistent with the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights. It distinguished a similar ruling by the First Section of the Court, which upheld the imposition of liability for comments that were deemed defamatory. For the Grand Chamber, the comments rose to the level of hate speech and incitement to violence, which were clearly unlawful and particularly harmful forms of speech.
The Grand Chamber declined to inform its Delfi analysis with caselaw interpreting the EU E-Commerce Directive and other relevant international instruments on the right to freedom of expression. According to these materials, a broad range of intermediaries should be shielded from liability for content that they transmit or host. The E-Commerce Directive and other materials indicate that intermediaries should not have a duty to monitor user-generated content on their sites, and decisions regarding liability should examine whether the intermediary had actual knowledge of unlawful material.
Although the European Court’s jurisdiction is limited to interpreting the European Convention and its protocols, I have argued in a forthcoming piece that the Delfi decision undermines legal certainty regarding intermediary liability in Europe and is problematic for the right to freedom of expression (see similar views here, here and here). The Court specified that its reasoning in Delfi only applied 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,” excluding most social networking services. Nevertheless, it is increasingly difficult to distinguish intermediaries on the basis of whether they provide or “edit” content.
The Court’s latest decision on the liability of an online intermediary
In Magyar Tartalomszolgaltatok Egyesulete and Index.hu Zrt v. Hungary (MTE), the Fourth Section of the European Court qualified Delfi and explained that Internet content providers will be held to the highest standards of conduct when hate speech or incitement to violence is posted on their sites. Because the comments in question in this case were merely defamatory, Hungary’s decision to hold the applicants – a self-regulatory body of Internet content providers and a major Internet news portal – strictly liable constituted a violation of Article 10 of the European Convention (a welcome contrast to the First Section’s holding in the 2013 Delfi decision).