Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights under the European Convention on Human Rights

DOIhttp://doi.org/10.1111/1468-2230.12081
Publication Date01 July 2014
Date01 July 2014
AuthorNeville Cox
CASES
Delfi AS vEstonia: The Liability of Secondary Internet
Publishers for Violation of Reputational Rights under the
European Convention on Human Rights
Neville Cox*
In October 2013, the European Court of Human Rights in Delfi AS vEstonia upheld a decision
of the Estonian Supreme Court to impose liability on the owners of an internet news portal for
defamatory comments which had been posted on their website by anonymous third parties. This
note suggests that the decision is important in the context of publications with a ‘public interest’
element to them, because it appears to afford more protection to the right to reputation (deriving
from the Article 8 right to privacy) and less to freedom of expression than was formerly the case.
It is further argued that the Court’s emphasis on the positive obligation of states to protect this
right to reputation may mean that the existing English law in this area, including, potentially
section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.
INTRODUCTION
This case comment concerns the decision of the Chamber of the European
Court of Human Rights (the Court) in Delfi AS vEstonia.1The key conclusion
of the Court in this case is that what may be termed secondary internet publishers
– that is, entities which provide a forum for third parties to post comments or
other publications on the internet – can and possibly must attract liability in
defamation for harms caused by such comments, even when they expressly state
that the comments do not reflect their views and even when the comments are
deleted as soon as the secondary publisher’s attention is drawn to their existence.
What is, perhaps, most significant about the judgment, however, is the manner
in which the Court balances the competing rights of freedom of expression and
reputation. Indeed the judgment may be seen as reinforcing the fact that the
Court in 2013 is considerably more disposed to protecting the right to reputation
(under both Article 10(2) and Article 8 of the European Convention on Human
Rights (the Convention)) at the expense of the right to freedom of expression
than was previously the case.
FACTS OF THE CASE
The applicants in this case owned and operated a large internet portal on which
they published a range of news stories – as many as 330 per day. In addition there
*Associate Professor of Law, Trinity College Dublin. The author wishes to thank Professor William
Binchy for his assistance.
1 [2013] ECHR 941.
bs_bs_banner
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(4) MLR 619–640
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT