NGOs under European Convention on Human Rights / Tymofeyeva

persons, on its Internet portal. A good example of such an approach is the case of Delfi AS v. Estonia . 878 The applicant company in this case owned one of the largest Internet news portals in Estonia, where readers could anonymously post comments below the published articles. 879 An article was published on the portal concerning the activity of a famous ferry-company, which was followed by a number of comments containing personal threats and offensive language directed against the ferry-company owner. The applicant company removed these comments six weeks later. The ferry company, nevertheless, instituted defamation proceedings against the applicant company, where it succeeded. Before the Court the Article 34 NGO applicant complained that holding it liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided in Article 10. The main argument of the applicant company was that the domestic law did not impose an obligation on it to pre-monitor content posted by third parties. Moreover, its liability was limited under the EU Directive on Electronic Commerce. 880 The Court’s chamber did not agree with the company in view of the fact that as far as the applicant company was able to exercise a substantial degree of control over readers’ comments, it was in a position to predict the nature of the comments. By this way, it was obliged to take technical measures to prevent defamatory statements from being made public. The situation was aggravated because there was no opportunity to bring a civil claim against the actual authors of the comments because their identity could not be easily established. The case was referred to the Grand Chamber of the Court and the hearing before it took place on 9 July 2014. The representative of the applicant, Karmen Turk, started her speech before the Court on that day with the phrase: “This case is about what kind of Internet we want to leave behind to the next generation”. 881 The applicants presented three main arguments aiming to persuade the Court to change its opinion given in the Chamber judgment and to conclude that there had been a violation of Article 10 of the Convention in respect of Delfi. The first argument concerned the legal concept of a ‘publisher’ in view of the new technical solutions provided by Internet. According to the applicant, the Internet news portal could not be seen as a publisher of comments, but only as an intermediary and, therefore, should be exempt from liability for the posts produced by its readers, not by the company itself. The second argument related to editorial control allegedly exercised by Delfi and the need for such a control. The applicant stressed again that it just provided a technical solution to readers as an intermediary. At last, the applicant argued that a society is a self-regulating structure. Any interference with its activity must be prescribed by Delfi AS , cited above, § 94. 879 COX, N. Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights under the European Convention on Human Rights . The Modern Law Review, 2014, p. 620. 880 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. L 178, 17/07/2000 S. 0001-0016. 881 Webcast of the hearing in the case of Delfi AS v. Estonia of 9 July 2014. URL: accessed 20 July 2015. 878

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