Case No. 3-2-1-43-09 (Delfi case)

(1) The case arose when a popular news portal (Delfi) in Estonia published an article about the ferry connection with the islands in Estonia. The news portal enabled users to comment on news articles. Among the comments were 20 comments that according to the claimant, the majority shareholder of the ferry transport company concerned, infringed his personality rights. The claimant argued that the news portal is liable for the damage incurred. Although Delfi implemented pre-examination of comments (if comments included specific vulgar expressions, the comment was not published), this was seen as an ineffective measure.

(2) The Supreme Court upheld previous judgments and reiterated that (i) Delfi is a provider of content services. As such, Delfi governs the content that is stored and should be distinguished from an information service provider, falling under the e-Commerce Directive's Article 14 and its Estonian national implementation (Section 10 of the ISSA), which has neither knowledge of nor control over information which is transmitted or stored. (ii) By integrating the comment environment into its news portal and inviting users to post comments, Delfi could decide which comments to publish or not.  The fact that Delfi did not use this capability did not mean that it had no control over the publishing of comments. In the Supreme Court’s view, because Delfi had a legal obligation to avoid causing damage to other persons, Delfi should have prevented unlawful comments from being published. (iii) Additionally, Delfi acted out of economic considerations and as such, the ISP cannot be seen as acting neutrally. (iv) Finally, the Estonian Supreme Court noted that both Delfi and the authors of the comments could be considered publishers of the comments. Therefore, the defamed party was free to choose against whom to bring the lawsuit.

(3) The case was appealed to the European Court of Human Rights (ECtHR) where the First Section of the ECtHR issued its judgment on 10 October 2013. The case was referred to the Grand Chamber on 17 February 2014 and the judgment of the Grand Chamber was issued on 16 June 2015. The Grand Chamber found that the judgement of the Supreme Court of Estonia finding that Delfi is liable for the offensive comments had been a justified and proportionate restriction on the portal’s freedom of expression and the steps taken by Delfi to remove offensive comments without delay after their publication had been insufficient.