TrustHLT/LaCour huggingface dataset:
GR1 (Government): Thus nothing in the circumstances described above could have given Telvi a reason to expect that it is not liable for the comments published to its articles under Estonian law.
GR1 (Government): There were absolutely no grounds to make a presumption that Telvi could rely on the EU directive, the respective domestic law, Information Society Services Act or the ECHJ case law, because there were no case law examples according to which the exemptions are applicable in regard to journalistic activities, and there are no such examples today either.
GR1 (Government): Contrarily, the applicable civil law was clearly foreseeable because the joint liability of journalistic media organisations and authors of the articles had been well established in the Estonian case law, reflected in our memorial, paragraph 32-33.
GR1 (Government): The definitions that disclosing means making information available to third persons and that a discloser is a person who makes the information available were confirmed by the Supreme Court also in 2005.
GR1 (Government): It is after 2004 when the directive was integrated into the domestic law.
GR1 (Government): And Telvi's liability for the anonymous comments disclosed on its news portal had been stressed in public by Estonian high officials also in 2005.
GR1 (Government): It is after the directive was integrated into the domestic law.
GR1 (Government): The applicable domestic legislation has been reflected in our memorial, paragraph 48.
GR1 (Government): The constitutional freedom of expression is limited with the obligation not to violate other person's personality rights foreseen under paragraph 17 and 19 of the constitution and in the law of obligations act.
GR1 (Government): In this case, Telvi as a discloser was reproached for failure to act.
GR1 (Government): Estonian courts explained that liability for failure to act exists if there is an obligation to act, which could proceed either from a legal act or from general due diligence required in commerce.
GR1 (Government): As already noted, honor and good name is protected by the law of obligations act and general due diligence required in commerce in turn means that each person who creates a source of risk, which could foreseeably bring along a risk of harming third person's right, shall take reasonable measures to avoid such harm.
GR1 (Government): By setting up a news portal with an integrated commenting board, Telvi had created a source of potential risk that third person's personality rights could be violated, but did not take sufficient measures to prevent such harm done.
GR1 (Government): Liability for information and data made available for the public through a mass media medium cannot be different depending on the forum in which such publishing has been done.
GR1 (Government): In WGT, Verenig and Diefabrieken versus Switzerland, your court admitted that excessive rigidity of law does not enable to keep pace with the changing circumstances.
GR1 (Government): And in Bernd Larsen Holding OS and others versus Norway, your court concurred that the application of existing tort law to a novel area related to new technologies is completely accepted.
GR1 (Government): Thus the fact that Telvi was using new technological means did not change the basic criteria for liability, especially as the liability of publishers under civil law was well established and predictable.
GR1 (Government): Proceeding from the facts established above, it is that Telvi was liable for the defaming comments under the Law of Publications Act as a publisher, we have reached the question of proportionality.
GR1 (Government): Your court has highlighted the need for balance between Articles 8 and 10 in several judgments.
GR1 (Government): For example, in Chauvy and others versus France or Feffer versus Austria.
GR1 (Government): The same need for balance has been highlighted in a recent ECJ's judgment of 13th May 2014 in Google Spain case.
GR1 (Government): After specifically pointing out that the effect of interference with the rights of the data subject is heightened on account of the important role played by the Internet in modern society, the ECJ concluded that the right to respect for family and private life and protection of personal data override as a rule not only the economic interest of the operator of a search engine, but also the interest of the general public in finding the respective information upon a search.
GR1 (Government): And hereby I would like to answer your court's question to the government about the available remedies for the victim of online defamation for establishing the actual authors of defamatory comment statements.
GR1 (Government): I start from a little further and note that even in criminal proceedings, application of which would not be preferred in case of defamation, as set forth clearly in your court's case law, for example in Gumpana and Masare versus Romania or in Raihinem versus Bulgaria, it is an exhausting and time-consuming procedure to establish the real commentator in case of anonymous comments.
GR1 (Government): First the IP address should be identified.
GR1 (Government): Thereafter, a person behind that IP address should be established.
GR1 (Government): Already first step could be unsuccessful if a proxy is used or if data has not been kept by the service provider or if a comment has been deleted.
GR1 (Government): But even if an IP address is established, identifying the person behind that IP address as a second step usually demands specific investigative measures like searches, surveillance, interrogations, expertise, and so on.
GR1 (Government): There are several reasons behind that, as the government have explained in the memorial, paragraphs 83 to 85.
GR1 (Government): For example, public computers have been used, Internet connection through Wi-Fi in a random place or a dynamic IP address has been used.
GR1 (Government): There could also be hundreds or thousands of persons behind one IP address, as it usually is in big companies or in schools.
GR1 (Government): Nevertheless, if in criminal cases, special investigative steps could help the investigators forward.
GR1 (Government): In civil cases, the identification of an anonymous commentator would be next to impossible.
GR1 (Government): Unless the IP address is identifiable and leads directly to a concrete person who admits writing the comment, which is usually not the case.
GR1 (Government): Thus, although there exists a pretrial establishment of facts procedure to which the applicant refers to, in case of anonymous comments, it would be most likely too burdensome and also unsuccessful for the victim, as in civil proceedings, the investigative tools cannot be used to find the real author of a comment.
GR1 (Government): This procedure would not guarantee the protection of rights of a victim.
GR1 (Government): Your court has underlined in numerous judgments, for example, in Sejdovic versus Italy or Salmoni versus France, that the victim should not try to exhaust remedies which are not effective.
GR1 (Government): At the same time, the government stress that the fact that the authors of anonymous comments often cannot be identified in civil proceedings is not attributable to the state.
GR1 (Government): If the state were to oblige the portals to identify the commentators, that would cause a similar reaction that freedom of expression has been violated.
GR1 (Government): Returning to the criminal liability for defamation in order to be able to use the means of criminal procedure would not be the proportionate answer either.
GR1 (Government): The decision whether to identify the commentators or to take any other measures should be taken only by the portal itself.
GR1 (Government): Therefore the state has fulfilled its positive obligation proceeding from Article 8 by leaving a portal a choice to guarantee balanced rights, but also assuring that if a portal fails to do that, a complaint can be submitted against the portal who will be held liable if there has been a violation.
GR1 (Government): In that regard, it must be stressed that even if a commentator stayed anonymous to the public, it did not have to be anonymous to DELFI.
GR1 (Government): In case of a complaint, DELFI could have forwarded the data of a commentator to the court and the complaint against the specific commentator could have been submitted.
GR1 (Government): In reality, most online news portals demand some kind of registration, as the government has shown in the memorial, paragraph 8.
GR1 (Government): In this connection, the government also notes that nothing prevented DELFI to involve the commentators as third persons in the proceedings or to submit a regress claim against the commentators later, especially if DELFI found that their identification would be so easy.
GR1 (Government): But if a news portal prefers to allow completely anonymous comments to its articles because it is economically more useful and leaves the victims in the most vulnerable position because the risk of illegal comments is higher than in portals where the commentators are registered, it has to take different measures to minimize the possible harm done to the other persons.
GR1 (Government): The fact is that DELFI was well aware that the article on the question was of great importance and that it created negative emotions to the public, confirmed by DELFI in its memorial, paragraph 73-74.
GR1 (Government): Thus, DELFI had a reason to expect that the said article may provoke unlawful comments from readers.
GR1 (Government): Nevertheless, DELFI did not take measures to prevent anonymous defaming comments, nor did it monitor the comments afterwards.
GR1 (Government): Proceeding from the same deliberations, the domestic courts and the chamber established that the reputation of Fair El was not protected proportionally.
GR1 (Government): They agreed that the measures taken by DELFI were not sufficient and found that it would be unfair and contrary to the principle of good faith to put the obligation to monitor internet 24-7 on potential victims.
GR1 (Government): The government also underlined that the domestic courts did not prescribe which measures DELFI should take, but expressly noted that it should be for the portal to decide.
GR1 (Government): That was accepted by the chamber and the same principle was underlined in the recent ECJ judgment of 27 March 2014 in UPC Telegabel, where the ECJ found that the very substance of the freedom of an internet service provider to conduct a business was not infringed because it was able to choose to put in place measures which are best adapted to him.
GR1 (Government): In addition, the domestic courts, neither in DELFI case nor in other examples we have given, have awarded high compensations.
GR1 (Government): Already in 2004-2005, the Supreme Court underlined that each defamation case does not need to be concluded by awarding compensation.
GR1 (Government): The government also reminds you that defamation took place in 2006 and that DELFI itself has taken measures to guarantee better balance between the rights foreseen in Articles 8 and 10 years ago, after the Supreme Court judgment.
GR1 (Government): What should be stressed is that DELFI is still the biggest news portal in Estonia, allowing continually anonymous comments and earning a high revenue on the advertisements proceeding from the comments.
GR1 (Government): So obviously the judgments did not bring along any disproportionate consequences to the portal in question.
GR1 (Government): Turning now to the more general aspects of the case, the Estonian government wished to stress with references to the submissions of DELFI and third party interveners, how intimidating it is to read that vast majority of allegations made online are often too trivial.
GR1 (Government): The government finds the contradiction to be evident.
GR1 (Government): If the internet is so important for the public debate for freedom of expression, how can the offensive comments that will stay on the internet forever be trivial and insignificant?
GR1 (Government): How could the protection of Article 8 be less important on the internet?
GR1 (Government): Nothing in your court's case law tolerates the balance between Articles 10 and 8 to be inclined towards protecting only Article 10.
GR1 (Government): In the world of internet, keeping the balance and protecting the ordinary person becomes even more important, as the chamber in the judgment has found.
GR1 (Government): As the mass media on the internet are nowadays often commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news and juicy comments than in disseminating proper information to the public, like DELFI, the protection of privacy of an ordinary man might be disregarded under the popular slogan, freedom of expression.
GR1 (Government): Your court should see behind the declarative words of DELFI about the freedom of speech, especially when the publications do not contribute to the debate of general interest to society, as your court has underlined in Krona Verlag versus Austria and was the case here.
GR1 (Government): Regarding the accessible remedies for possible victims of defamation, the government asks your court to take into account that neither DELFI nor the third party interveners have been able to address the question of balance of different rights and the proportional remedies in respect of others in circumstances created by DELFI.
GR1 (Government): In fact, they have not even mentioned Article 8 and personality rights.
GR1 (Government): In conclusion, the government underlined that a private publishing company could not expect to be free from any liability.
GR1 (Government): After having created the situation where the real commentators are not identifiable and having not taken other sufficient measures to minimize the risk of harm that could be done to third persons.
GR1 (Government): And for the very last, regarding the claim for just satisfaction, the government remain with their comments on the claim for pecuniary damages and cost and expenses submitted on 23rd September 2011 to the chamber.
GR1 (Government): And I will not repeat them.
GR1 (Government): Those comments will also apply to the additional costs borne during the grand chamber proceedings, which the government find to be unreasonably high.
Dean Spielmann (JudgeP): Je me tourne vers les collègues.
Dean Spielmann (JudgeP): La juge Ziemele et ensuite le juge Spano.
Ineta Ziemele (Judge): My questions, it's one big question with several sub-points, goes principally to the applicants' representatives, but of course the government is also welcome to comment on that.
Ineta Ziemele (Judge): Since the applicant made just now in the submissions a very interesting submissions on the principles as concerns, the application of freedom of expression in relation to internet media.
Ineta Ziemele (Judge): I would like you to clarify exactly what your sort of view is.
Ineta Ziemele (Judge): Am I right in understanding that the applicant's position is that in the name of freedom of expression, there is no obligation of pre-monitoring?
Ineta Ziemele (Judge): Or you can probably subdivide it either by internet media or, and that's where I didn't quite understand your position, or your position is that it only, this lack of obligation applies to intermediary.
Ineta Ziemele (Judge): So if you would clarify that.
Ineta Ziemele (Judge): And from here, I simply note that as you submitted yourselves already at the time of the facts, some filtering system was put in place by Delphi, and you also pointed out that in fact, there is also a possibility that a particular journalist monitors the comments as attached to the article and then can propose that inappropriate comment is deleted.
Ineta Ziemele (Judge): So of course, while understanding that the filtering system with these few additions is not what pre-monitoring means in the expert world in this area, may I ask you to clarify, say, what were the considerations or the principles?
Ineta Ziemele (Judge): And what were the purposes then for Delphi to put in place the filtering system and also these two other sort of, I understand, random possibilities of monitoring the comments?
Ineta Ziemele (Judge): So it is all linked to my question as to how you understand the scope or the type of obligations of the internet media.
Ineta Ziemele (Judge): And linked to that is, you were mentioning that the filtering system was capable of catching inappropriate words.
Ineta Ziemele (Judge): Could you maybe elaborate what were the inappropriate words that this filtering system was capturing?
Ineta Ziemele (Judge): And since the comments that are at the centre of the case, we have them in paragraph 14, I believe, of the Chamber Judgment.
Ineta Ziemele (Judge): We have all seen those comments.
Ineta Ziemele (Judge): So my question linked to those words is, am I right in assuming that those words are considered appropriate by the filtering system as in place at the time?
Dean Spielmann (JudgeP): Merci beaucoup, le juge Spano.
Robert Spano (Judge): I have some factual issues that I would like to explore with the applicant and then one question to the government.
Robert Spano (Judge): It seems clear from the facts as established by the chamber that the defamed person, the head of this shipping company at national level, he brought a claim to the applicant company, Philadelphia, six weeks after the article in question had been published.
Robert Spano (Judge): My question is, as I understand it from the chamber judgment and now your submissions, did he only submit a claim for damages?
Robert Spano (Judge): Did he request that the comments be removed or was that a request that he did not make?
Robert Spano (Judge): Now as regards this request removal, had the defamed person been in any contact, direct or indirectly, with the applicant company before these six weeks, that is before he formally submitted the claim for damages?
Robert Spano (Judge): My second factual issue to the applicants is your submission here today, which I find intriguing, where you discuss what you call the willful blindness institution, where you state, if I recall correctly, that is a situation where the applicant deems he has a higher level of care.
Robert Spano (Judge): Could you explain to me what kind of situations you're dealing with?
Robert Spano (Judge): Is that limited to articles which prior to publication would be considered provocative?
Robert Spano (Judge): And moving from there, would you accept in this case that if the article in question would not have been a balanced one and in accordance with journalistic ethics, as you mentioned, that liability of the sort that the applicant company was imposed would have been a proportionate measure under Article 10?
Robert Spano (Judge): The last issue regarding the facts is the issue of the possibility of the defamed person to establish the identity of the authors.
Robert Spano (Judge): The government said, and I hope I wrote it down correctly, nothing prevented Delphi to involve the commentators as third parties to the proceedings.
Robert Spano (Judge): Can I especially ask you to respond to that assertion by the government?
Robert Spano (Judge): And may I ask, did the injured person request disclosure of the commentators in question, the IP addresses as they were, as I understand it, all anonymous?
Robert Spano (Judge): Lastly, my question to the government.
Robert Spano (Judge): The government, the applicant alleges in this case that the interference at national level was not prescribed by law.
Robert Spano (Judge): The chamber in this case acknowledges that the legislation in question was, and I quote, general and lacked detail.
Robert Spano (Judge): The government says here today, and I quote, everybody who makes information available to third persons is considered to be a discloser.
Robert Spano (Judge): May I ask for clarification on the following issue?
Robert Spano (Judge): Before the decisions at national level in Delphi, had this rule of civil liability ever been applied by the domestic courts to a situation where the alleged discloser had no prior control, editorial or otherwise, to the content of the information made available to third parties?
Robert Spano (Judge): And in relation to that, to what extent are we to consider the application of this rule in Delphi's case to be one of strict, no culpa, objective tort liability?
Robert Spano (Judge): Or is it based on a showing of actual knowledge of the illegal content of the information in question?
Robert Spano (Judge): And would this rule, under the way in which you describe it, would that automatically apply to social media platforms like Facebook or YouTube?
Robert Spano (Judge): Because these intermediaries, these social platforms, indeed make available information to third parties.
Robert Spano (Judge): So my question is, would this rule apply with the same kind of force to these social media platforms?
Dean Spielmann (JudgeP): Merci beaucoup, le juge vice-président Raimondi et ensuite le juge Villiger.
Guido Raimondi (Judge): My question is addressed principally to the government, but of course the applicant company might wish to comment as well.
Guido Raimondi (Judge): The international documents adopted in this field, including those of the Council of Europe, which have been referred to extensively in the Chamber of Judgment and in memorials, show, at least in my view, a clear trend towards the opportunity of differentiating the regime of the Internet, especially as far as Article 10 of the Convention issues are concerned, from the regulation of, so to speak, traditional media.
Guido Raimondi (Judge): And we know, of course, that the position of the government is in the sense that the traditional legal framework, basically the civil code, so the "neminem laedere" principle, is sufficient to satisfy the needs of Article 10.
Guido Raimondi (Judge): Now, my question is, is there any reflection going on at the parliament level, at the government level or in other political circles, about the possible introduction of a specific legislation in Estonia on the model of, for instance, what has been done in the United Kingdom with the approval last year of the Deformation Act 2013 applicable for England and Wales?
Dean Spielmann (JudgeP): Thank you very much, Judge Villiger.
Mark Villiger (Judge): I have a factual question to the applicant company.
Mark Villiger (Judge): And in fact, it follows the question put by Judge Ziemele.
Mark Villiger (Judge): We know that since the chamber judgment, the applicant company changed its business model as regards comments.
Mark Villiger (Judge): And it now pre-moderates all incoming comments.
Mark Villiger (Judge): It controls whether the comments comply with the rules on commenting.
Mark Villiger (Judge): My question is, how many moderators does Delphi employ to pre-moderate these comments?
Dean Spielmann (JudgeP): Thank you very much, Judge Bianku.
Ledi Bianku (Judge): I have a question for the applicant.
Ledi Bianku (Judge): In the chamber judgment in paragraph 10, is quoted a kind of disclaimer by your company, and I'm quoting that paragraph saying, the applicant company had made efforts to advise users that the comments were not its opinion and that the authors of comments were responsible for their content in the conditions where the users are anonymous.
Ledi Bianku (Judge): How can this disclaimer be operational, and have you referred to this during the domestic proceedings?
Dean Spielmann (JudgeP): Thank you very much. No other questions. So I propose to suspend the hearing and
Dean Spielmann (JudgeP): we will resume the hearing at 10 to 11.
Dean Spielmann (JudgeP): Mr. Otsmann.
AP1 (Applicant): Honorable members of the panel, thank you for the very interesting questions that made us think quite a lot during the 20 minutes.
AP1 (Applicant): And I'll try to give you as much information as I can during this 10 minutes allocated to us.
AP1 (Applicant): The Honorable George, in etatiemela, asked that whether, in the name of freedom of expression, there is really no obligation to pre-monitor the comments.
AP1 (Applicant): In case of responsible, balanced journalists, there are no responsibilities indeed towards the comments.