The Grand Chamber of the European Court of Human Rights (ECtHR) recently upheld the decision of the First section in the case Delfi v Estonia, which in 2013 found that holding a news portal liable for the third-party comments posted on its Internet news portal did not amount to a violation of Article 10 of the European Convention on Human Rights (ECHR). Given that we asked in an earlier post whether a passive and neutral intermediary could also be a data controller, it is interesting to have a look at the Delfi case to better grasp what a passive and neutral intermediary is or could be.
Let’s start with the facts of the case. “[T]he applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day… Delfi is one of the largest news portals on the Internet in Estonia…. [A]t the end of the body of the news articles there were the words “add your comment” and fields for comments, the commenter’s name and his or her e-mail address (optional). Below these fields there were buttons labelled “publish the comment” and “read comments”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “read comments” button”.
Importantly, “The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company”. A notice-and-take-down system had however been implemented for insulting, mocking or hate messages as well as “a system of automatic deletion of comments that included certain stems of obscene words”, i.e. a preventive filtering system.
On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”.
On 24 and 25 January 2006 the article attracted 185 comments and about 20 of them included “personal threats and offensive language directed against L”.
On 9 March 2006 L.’s lawyers requested the applicant company to take down the contentious comments and asked for approximately 32,000 euros in compensation for non-pecuniary damage [320 euros were ultimately awarded].
On the day of the request (about six weeks after the data of the publication of the comments), the applicant company took down the comments. 12 days later the applicant company notified L’s lawyers of the take-down, refusing to compensate L.
It is crucial to understand what was exactly claimed in this case: “The applicant company alleged that its freedom of expression had been violated, in breach of Article 10 of the Convention, by the fact that it had been held liable for the third-party comments posted on its Internet news portal”.
Said otherwise, the applicant company, a news portal hosting without prior human moderation user-generated comments triggered by its news item, was arguing that it should have benefited from Article 14 of the e-commerce Directive (as a passive intermediary) before the national courts, and, before the European Court that by holding it liable for third-party comments posted on its portal the national courts had violated its freedom of expression.
As the French would say, “one cannot keep the butter as well as the money to buy the butter”! Either you are a passive intermediary who is simply making it possible for third-parties to exercise their own freedom of expression, or you are also exercising your own freedom of expression when others post on your portal, which means that you are not merely passive. In this sense it was in fact very difficult to be fully convinced by the arguments of the applicant company! [It might be that the applicant company is not the only one to blame here as, as I have tried to explain it here, the rationale of the e-commerce Directive’s liability exemptions “discovered” by Advocate General Maduro and upheld by the Court of Justice of the European Union (CJEU) in Google v Vuitton might not be the best fit!] [To note, the ECtHR did accept that there was an interference with Article 10 ECHR in this case but ultimately held that the interference was justified].
If you add to this that the comments were ultimately found unlawful, the applicant company was not really on the safest side.
But the applicant company gave it a try and brought its case before the ECtHR, as the decisions of the higher national courts did not seem quite right. Would a preliminary reference to the CJEU have been useful? It does not seem to have been the view of the national courts. Was it really that obvious that another preliminary reference was not needed?
- The first and maybe the most obvious reason why the applicant company was not very happy with the decision of the national courts was that Delfi had in fact reacted expeditiously upon L’s lawyer’s request: on the date of the request the comments had been taken down.
For this reason, the only way the national court could try to criticise the behaviour of Delfi was by saying that it had to do more and in particular that it “should have prevented the publication of comments with clearly unlawful contents”, on its own initiative [according to the ECtHR the national Supreme Court was asking Delfi to act once the comments had been uploaded] .
- The second reason, and this is linked to what has just been said, was that by asking Delfi to preventively moderate all the materials on its system and not to simply rely upon an approximate key-word filtering system, the national courts were significantly impacting upon Delfi’s costs. Its freedom to conduct its business was therefore at stake, maybe more than its freedom of expression [To note, the European Charter of Fundamental Rights protects such a freedom in its Article 16].
Nevertheless, as noted by the ECtHR, Delfi never changed its business model as a result of the national proceedings and set up a team of moderators in 2009 (5 it seems), which meant that it had in fact the resources to be more proactive [but obviously the more proactive the service provider is, the less unlikely it is that it will be able to benefit from any liability exemption!].
- To continue in the same line, the third reason was that by asking Delfi to preventively moderate all the materials on its system, the national courts were making Article 15 of the e-commerce Directive an empty shell.
However, this is where there is still ambiguity and this why we actually need more preliminary references. As the national courts were “simply” asking Delfi to prevent “the publication of comments with clearly unlawful contents” and Article 14 of the e-commerce Directive does not expressly identify the means by which hosting providers can become aware “of facts or circumstances from which the illegal activity or information is apparent” one could have tried to justify the national court’s stance by arguing that by asking hosting providers to take the initiative to look for clearly unlawful content -and clearly unlawful content only (which for the ECtHR did not “require any linguistic or legal analysis”)-, there was no breach of Article 15.
But even if in L’Oréal v eBay the CJEU stated that within the meaning of Article 14 it was sufficient “for a hosting provider to have been aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question and acted in accordance with Article 14(1)(b) of Directive 2000/31” (at ) it is not clear that the Court wanted to impose upon hosting providers a duty to systematically look for certain types of content and in particular clearly unlawful content as per  the Court seemed to have in mind ad hoc “investigation[s] undertaken on [the provider’s] own initiative”. [To note, Scarlet v Sabam might not be that helpful as strictly speaking Delfi was not asked “to actively monitor all the data relating to each of its customers in order to prevent any future” illegal activity. For a criticism of the formulation adopted by the CJEU in Sabam see here].
In addition, even if Article 15(2) recognises the possibility of special monitoring obligations, they seem to consist in a duty to share relevant information with competent authorities, not in a duty to systematically look for certain types of content [But Article 15(2) has not always been interpreted in this way by national legislators, see e.g. the situation in France].
- The fourth reason was that it was not that obvious that Delfi was not a passive and neutral provider [although the ECtHR did state that “it was sufficiently established” that Delfi was not “a passive, purely technical service provider” at … but that as for the purposes of Article 10 and Article 10 only!].
It should be born in mind that In L’Oréal v eBay the CJEU stated 3 things:
- “The fact that the service provided by the operator of an online marketplace includes the storage of information transmitted to it by its customer-sellers is not in itself a sufficient ground for concluding that that service falls, in all situations, within the scope of Article 14(1) of Directive 2000/31” (at ).
- “The mere fact that the operator of an online marketplace stores offers for sale on its server, sets the terms of its service, is remunerated for that service and provides general information to its customers cannot have the effect of denying it the exemptions from liability provided for by Directive 2000/31” (at ).
- “Where, by contrast, the operator has provided assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting those offers, it must be considered not to have taken a neutral position between the customer-seller concerned and potential buyers but to have played an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale” (at ).
However, assuming the judgement of the Grand Chamber is not really surprising in particular in the light of the judgements of the CJEU, it raises the following question:
If intermediary service providers –in particular intermediary service providers hosting user-generated content- have to be diligent so that they have to take the initiative of implementing preventive measures in order to reduce the amount of unlawful content on their systems, should not they benefit from a liability exemption when they bona fide take down lawful content… and/or when they do not take down allegedly unlawful content still bona fide? [“But if these providers only have to do something about content that is clearly unlawful there can be no mistake!” might venture a diligent and probably cynical reader…].
To conclude, it is not because the ECtHR found the breach to Article 10 justified in Delfi v Estonia that the CJEU is now prevented from better delineating the scope of Article 14 and the effects of Article 15 of the e-commerce Directive!