Human Rights Centre Supports Request for Referral to the Grand Chamber in Delfi AS v. Estonia

The Human Rights Centre of Ghent University has expressed its support for the request for referral to the Grand Chamber in the freedom of expression case of Delfi AS v. Estonia. The Human Rights Centre has submitted its considerations in a joint letter to the European Court of Human Rights, signed by an impressive list of 69 media organisations, internet companies, human rights groups and academic institutions.

As indicated in the joint letter to the Court

The [Delfi] case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.

A few excerpts from the letter to the Court are reproduced below. The full text of the letter can be found here. The full text of the referral request is available here. Finally, a critical post on the Chamber judgment in Delfi AS v. Estoina – written for Strasbourg Observers by Professor Dirk Voorhoof – can be found here.

The letter to the Court opens as follows:

We [the signatorites] are writing to endorse Delfi’s request for a referral due to our shared concern that the chamber judgment, if it stands, would have serious adverse repercussions for freedom of expression and democratic openness in the digital era. In terms of Article 43 (2) of the Convention, we believe that liability for user-generated content on the Internet constitutes both a serious question affecting the interpretation or application of Article 10 of the Convention in the online environment and a serious issue of general importance.

The letter goes on to list a number of identified problems in the Chamber’s reasoning in Delfi. The signatories – including the Human Rights Centre – particulary argue that the Chamber judgment:

• Failed to clarify and address the nature of the duty imposed on websites carrying user-generated content.
• Is inconsistent with Council of Europe standards as well as the letter and spirit of European Union law.
• Did not thoroughly assess whether the decisions of the Estonian authorities were “prescribed by law” within the meaning of Article 10 § 2.
• Is at odds with emerging practice in the member states, which are seeking innovative solutions to the unique complexities of the Internet.

The letter concludes as follows:

For all these reasons, we strongly urge the Court to accept the applicant’s request for a referral that would allow the Grand Chamber to reconsider these issues, taking into account the points raised by the signatories in this letter.