The question of when an online news portal will be liable for user-generated content, such as comments on a website, has gone all the way to the Grand Chamber of the European Court of Human Rights (ECHR) (Delfi AS v Estonia [2015] ECHR 586). The Grand Chamber held that there was no breach of the right to freedom of expression under Article 10 of the European Convention on Human Rights (the Convention) (Article 10) when the Estonian Supreme Court held that the Delfi online news portal was liable for not taking down racist and threatening comments by users of its website before it was put on notice.

At first glance, this decision appears to place a significant and unfair burden on online service providers to actively monitor and remove unlawful content. However, on a closer review, online service providers do not need to panic.

Delfi, one of the largest online news portals in Estonia, publishes news and invites users to post comments at the end of articles. At the time that the dispute arose, users did not have to register with Delfi and their comments were automatically uploaded without moderation. Filtering software removed comments that included certain obscene words. The website had rules about writing comments, which prohibited, among other things, threats and insults. On being given notice of a complaint, Delfi would promptly take down the comments. According to the Estonian government, Delfi had a notorious history of publishing defamatory and degrading comments.

Delfi published an article entitled "SLK destroyed planned ice road". SLK is a company that provides a public ferry service in Estonia. In the winter when the sea is frozen, ice roads between mainland Estonia and certain islands can be used rather than ferries. The article attracted 185 comments against SLK and L, its senior executive and majority shareholder.

Six weeks after the comments were posted, L's lawyers requested that 20 of them be removed and claimed damages. The comments complained of were clearly unlawful and included hate speech and incitements to violence. Delfi immediately took down the 20 comments but refused to pay damages. L sued Delfi, claiming approximately €32,000.

An Estonian court of first instance dismissed L's claim on the basis of the domestic law that implemented the EU hosting exemption in Article 14 of the E-Commerce Directive (2000/31/EC) (see box "EU hosting exemption"). However, the Estonian Court of Appeal ruled that this exemption did not apply and that there was a breach of the Estonian Obligations Act. L was awarded €320. The Estonian Supreme Court upheld the decision, concluding that Delfi should have been aware of the comments and either prevented them, or removed them of its own initiative.

Delfi appealed to the ECHR, arguing that there had been a violation of its Article 10 right to freedom of expression by the decision that it was liable for the six-week period before it was put on notice of the comments. Delfi also argued that it should have been exempt from liability under the EU hosting exemption.

A seven-judge chamber of the ECHR held that there was no violation of Article 10 (www.practicallaw.com/9-549-7830). This judgment was so controversial that the Grand Chamber, composed of 17 judges, agreed to review the case. Seven organisations submitted arguments as interveners.

The Grand Chamber had to decide if the interference with Delfi's freedom of expression was:

Lawfulness. The Estonian Supreme Court had considered the difference between the role of a publisher and an internet portal operator. In light of Delfi's economic interest in, and potential control over, the comments, the Estonian Supreme Court had decided that the Obligations Act applied and the hosting exemption did not. So Delfi was to be treated as a publisher of the user-generated content.

The Grand Chamber explained that its task is not to take the place of the Estonian courts. It was satisfied that Delfi was able to foresee to a reasonable degree that it could be found liable under Estonian law, so the interference was prescribed by law.

Legitimate aim. The Grand Chamber held that the interference was for the legitimate aim of protecting the reputation and rights of L.

Necessary in a democratic society. The Grand Chamber took account of the reasoning of the Estonian Supreme Court, including that:

In the circumstances, by 15 votes to two, the Grand Chamber held that the Estonian Supreme Court's judgment was based on relevant and sufficient reasons having regard to the margin of appreciation. Estonia had not breached Article 10.

There are two possible consequences of this judgment. The first is that it could put a heavy and unfair burden on intermediaries to monitor user-generated content and prevent or remove clearly, or even arguably unlawful content. This would likely result in a chilling effect on free speech.

Alternatively, and more probably, Delfi will not have major consequences for free speech or intermediaries, except perhaps in Estonia. This is because the judgment only states that Estonia had not violated Article 10. The Grand Chamber applied its well-established principles, holding that the Estonian Supreme Court's reasoning and decision to order Delfi to pay €320 was within Estonia's margin of appreciation. The Grand Chamber did not rule on whether Estonia had correctly interpreted EU law on intermediary liability.

The case would, potentially, have had greater ramifications had the Estonian Supreme Court referred important questions regarding intermediary liability to the European Court of Justice. This is what it probably should have done.

While some intermediaries may now be wary of Estonia and claimants might consider bringing actions there if possible, the fact that the damages awarded were so low is likely to minimise any real impact.