## Facts

- Delfi AS operated a large, commercial Estonian news portal that published hundreds of articles daily and permitted anonymous user comments displayed with advertising.
- Delfi used an automatic profanity filter and a user flagging system; comments posted without prior review, and Delfi could store and delete them.
- Delfi published an article about a ferry operator’s conduct affecting seasonal “ice roads,” which attracted 185 user comments.
- About 20 comments contained extreme abuse, including threats and calls for violence, directed at the ferry operator’s owner (L.).
- The unlawful comments remained accessible for roughly six weeks and were removed after L.’s lawyer demanded deletion.
- L. sued Delfi in civil proceedings seeking damages for reputational and personality harm; Estonian courts found the comments unlawful and held Delfi liable as a professionally run, profit-making portal with control over the comments environment.
- Delfi was ordered to pay €320 in non-pecuniary damages (plus costs), and it complained that the liability finding violated its freedom of expression under Article 10 of the European Convention on Human Rights.

## Issues

1. Whether imposing civil liability on a commercially operated news portal for defamatory and hate-speech user comments constituted an unjustified interference with the portal’s freedom of expression under Article 10.
2. Whether, given the portal’s control over commenting and the anonymity of users, national courts could treat the portal as responsible for failing to prevent or promptly remove manifestly unlawful comments.
3. Whether the domestic measures and damages were proportionate to the legitimate aim of protecting the reputation and rights of others.

## Decision

- The Grand Chamber held, by 15 votes to 2, that there was no violation of Article 10.
- The Court found an interference with Delfi’s expression rights but held it was prescribed by law under domestic civil-liability rules.
- The interference pursued the legitimate aim of protecting the reputation and rights of others.
- The Court concluded the interference was necessary in a democratic society because the comments included hate speech and incitement to violence, Delfi had significant control and economic interest in the commenting system, and its measures did not prevent extended availability of clearly unlawful content.
- The modest damages award and the case-specific standard of care fell within the State’s margin of appreciation.

## Legal Principles

- Civil liability for third-party online comments can be compatible with Article 10 where the interference is lawful, pursues protection of others’ rights, and is proportionate.
- Hate speech and incitement to violence receive limited protection under Article 10, permitting stronger measures to protect targeted individuals.
- A large, commercially operated news portal that designs and controls its commenting platform and benefits from engagement may be expected to take effective steps against manifestly unlawful comments.
- Notice-and-take-down and basic filtering may be insufficient where the risk of clearly unlawful comments is foreseeable and such comments remain accessible for an extended period.
- In assessing proportionality, relevant factors include the nature of the speech, practical ability to pursue anonymous commenters, the portal’s control and preventive capacity, and the severity of sanctions.

## Conclusion

The Grand Chamber upheld Estonia’s imposition of civil liability on a commercial news portal for failing to prevent or promptly remove manifestly unlawful user comments, finding the measure proportionate and consistent with Article 10’s protection of freedom of expression.


Delfi AS v. Estonia, App. No. 64569/09 (Eur. Ct. H.R. June 16, 2015) (GC)