TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Whether a journalist was interested in comments to his articles, read those, and saw an inappropriate comment, or the fill for blindness institution demanded higher level of care.
AP1 (Applicant): I explain.
AP1 (Applicant): In cases where the article itself is provocative, one could argue that the news portal would have to monitor the comments since the responsibility of a classical publisher might start before the complaint from a user.
AP1 (Applicant): In this case, the arguably inappropriate comments were removed from the internet expeditiously.
AP1 (Applicant): However, the first section found that this is not enough, and that the host of comments platform must avoid all and any damage to any person altogether.
AP1 (Applicant): The applicant asserts that the first section decision fails to strike a fair balance.
AP1 (Applicant): Expeditious removal of complaint comments should have fulfilled the conditions of Council of Europe, as well as Estonia's domestic and EU law.
AP1 (Applicant): The question remains, of course, where is the fair balance?
AP1 (Applicant): It is the applicant's firm belief that the law should not be preventive.
AP1 (Applicant): It needs to be reactive to situations as these emerge.
AP1 (Applicant): For that purpose, the applicant's safeguards did strike a fair balance.
AP1 (Applicant): We note that it should not be anybody's obligation nor liability to supervise average users' opinions, but this user itself is to bear the responsibility for his actions.
AP1 (Applicant): This is well outlined by an amicus carri to these proceedings, Helsinki Foundation for Human Rights.
AP1 (Applicant): It emphasized that it is the state's positive obligation to ensure that there are adequate measures for the victim to be able to pursue remedies against the author of the comments, especially considering the anonymous character of the internet.
AP1 (Applicant): The applicant's experience confirms that there are such remedies available in Estonia, and vast a majority of commenters are identifiable in Estonia today, as well as during the time this court case was initiated.
AP1 (Applicant): And yet, the first section proposed two different solutions for the applicant to free itself from the liability, to pre-monitor all the comments, or require registration of users.
AP1 (Applicant): The first of these, not to mention semblance to censorship, is totally unachievable and disproportionate.
AP1 (Applicant): To leave aside the fact that the applicant itself might be able to hire an army of moderators, and thus it might be technically feasible to pre-moderate all 10,000 comments a day, it would not be achievable for most other hosts in similar positions, small bloggers, as well as global news outlets.
AP1 (Applicant): As an example, some numbers from the European Digital Media Association CCIA and EuroAspa submissions.
AP1 (Applicant): In every single minute, there is more than 130 hours of video uploaded to YouTube.
AP1 (Applicant): There are more than 40,000 posts in Facebook, more than 2,000 posts in just one blogging platform, WordPress.
AP1 (Applicant): There are over 20 million articles in Wikipedia.
AP1 (Applicant): These are all user-generated content, moderation of which is unachievable and disproportionate and should not be wanted in a democratic society.
AP1 (Applicant): The second option envisaged by first section was enforcement of real name policy.
AP1 (Applicant): That, in applicants' view, is infringement of human rights per se.
AP1 (Applicant): Real name policy, or likewise, banning comments in the first place, would be absolutely acceptable if freely chosen as a business model, since everyone has a right to decide what it wants to host on his own platform.
AP1 (Applicant): However, it is not a proportionate measure for a state to make mandatory.
AP1 (Applicant): The Council of Europe has repeatedly underlined the importance of anonymity, as described earlier in the section for applicable law.
AP1 (Applicant): The anonymity has long been considered to be the one tool empowering people to voice their opinions on subjects for which they might not be able to express under real names.
AP1 (Applicant): The applicant, as well as intervenors to this course, have established that anonymity is constitutionally protected by laws of many contracting parties.
AP1 (Applicant): For example, German courts have stated that the obligation to confess to a certain opinion would create the risk that fear of adverse effects would lead to the decision of not to express one's opinion.
AP1 (Applicant): This is danger of self-censorship.
AP1 (Applicant): The second part of my speech, as already said, is to shortly state the prominent counter-arguments to the government's memorial.
AP1 (Applicant): The memorial consists of three main arguments.
AP1 (Applicant): Firstly, the applicant objected to referral of the case to the European Court of Justice.
AP1 (Applicant): Secondly, the applicant should be liable due to his economic interest and small sanction.
AP1 (Applicant): And thirdly, that there is no European consensus on the matter of host liability.
AP1 (Applicant): Firstly, as already said, the government submits that, and I quote, Delphi strongly objected victim's request for referral to ECJ in the latter's appeal.
AP1 (Applicant): In reality, the applicant objected only due to the fact that county court had dismissed the victim's claim and found that the applicant was an intermediary and cannot be considered a traditional publisher of the comments.
AP1 (Applicant): And I quote again, its activity of operating the comments platform is mechanical and passive in nature.
AP1 (Applicant): And for intermediary, as the court stated, the law prescribed that there is no obligation to pre-control the comments.
AP1 (Applicant): Thus, this argument of government puzzles the applicant.
AP1 (Applicant): Why would the applicant want the referral to ECJ if the county court interpreted the EU law and respective national law in absolute correct way?
AP1 (Applicant): It was not for the applicant to neither know nor predict that higher courts would not follow the described decision.
AP1 (Applicant): The applicant further submits that the Supreme Court would have been obliged to refer the question to the ECJ if there was confusion on the law.
AP1 (Applicant): However, Supreme Court of Estonia interpreted e-commerce directive and relevant Estonian law and found that the law was clear that it would not apply to news portal comments platform, such as the applicants.
AP1 (Applicant): Thus, it did not refer the questions to the ECJ.
AP1 (Applicant): Unfortunately for the applicant, there is no direct access to European Court of Justice.
AP1 (Applicant): Secondly, the government relies on two substantive arguments in the first section ruling, the applicant's economic interest and insignificance of the sanction imposed.
AP1 (Applicant): However, in applicants' view, these arguments are unfounded, since economic interests in exploiting the portal should not affect nor remove the intermediary limited liability regime.
AP1 (Applicant): The European Court of Human Rights itself has underlined in case of Otronic versus Switzerland that the convention guarantees freedom of expression to everyone without making distinction according to whether the aim pursued is profit making or not.
AP1 (Applicant): Regarding the significance of the sanction imposed, the applicant admits that less than 400 euros as a sanction is not a sum to appeal to European Court of Human Rights for.
AP1 (Applicant): However, this case is not about a specific sum of money that is long ago paid to the victim.
AP1 (Applicant): It is about the principle.
AP1 (Applicant): Since holding intermediaries liable for the content created by the users undermines the enjoyment of the freedom of expression, because it leads to self-protective and overbroad private censorship.
AP1 (Applicant): And that without transparency and the due process of the law.
AP1 (Applicant): Thus, the amount of compensation is irrelevant to this dispute.
AP1 (Applicant): Thirdly, the government asserts that there is a lack of case law and European consensus by referring to case law dating mainly from the first decade of this century.
AP1 (Applicant): The applicant, as well as Amicus Caris, have showed that there is a European standard that has emerged from the individual states.
AP1 (Applicant): The applicant has outlined the cases from European Court of Justice in its submissions to this court.
AP1 (Applicant): However, shortly I hereby submit that, for example, in Saban-Bersaud Netlog, ECJ has stressed that it has repeatedly recognized the danger of requiring corporate entities to act as censors.
AP1 (Applicant): In another recent case from 27th March in UPC Telekabelwien, the ECJ held that the freedom of information would be adversely affected by measures addressed to intermediaries.
AP1 (Applicant): The states have nationally reached the same conclusion.
AP1 (Applicant): For social networking sites, blogging platforms, chat rooms, bulletin boards, video sharing sites, et cetera.
AP1 (Applicant): For example, Germany's Bundesgerichtshof in 2011 case involving a blog hosted on Google's Blogspot service held that Google is not required to proactively monitor articles and that it has to take action only if there is a notice of infringement that is sufficiently precise.
AP1 (Applicant): In addition, even after the first section decision, the national courts have remained in position that simplistic application of traditional rules of editorial responsibility is not the answer to challenge of the internet.
AP1 (Applicant): For example, Northern Ireland High Court expressly chose not to follow the first section ruling in Delphi versus Estonia.
AP1 (Applicant): The applicant must note that this court itself has considered that strict liability is not the answer for intermediaries.
AP1 (Applicant): And it just leads to overblocking of also legitimate content.
AP1 (Applicant): Just to name the latest decision, Wilderheim versus Turkey, where strict liability led to, as this court stated, collateral censorship.
AP1 (Applicant): Thus, the applicant stresses that there exists European understanding.
AP1 (Applicant): Even more, there is a shared standard common throughout the free world, whereby common platform operators are content hosts and are essentially liable for content once it has been drawn to their attention that it is potentially legal.
AP1 (Applicant): As this is what actually took place in this dispute, the applicant was made aware of some potential offensive comments, and it removed those expeditiously.
AP1 (Applicant): The applicant cannot and should not be considered liable for the content of those comments.
AP1 (Applicant): With this, I conclude this submission.
AP1 (Applicant): And thank you.
AP1 (Applicant): And I give floor to the representative of government.
Dean Spielmann (JudgeP): Merci beaucoup, Madame Turk.
Dean Spielmann (JudgeP): Je donne la parole au gouvernement et à Madame Kuurberg.
GR1 (Government): In the case brought before you, you are asked by the applicant, a news company, Telfi, to re-establish the facts established by the domestic courts and to apply legislation different from the one applied by the domestic courts based on those facts.
GR1 (Government): These requests per se exceed the limits of this case.
GR1 (Government): Your court in its case law has consistently underlined that it does not have a competence to assess or adopt a different position from the one of the domestic courts as to which domestic law is applicable.
GR1 (Government): The government will demonstrate that as the domestic courts in Telfi's case have thoroughly evaluated all the facts and aspects of the case, there was no arbitrariness in their decisions to identify Telfi as a publisher and to hold it liable under the respective foreseeable and proportionate legislation.
GR1 (Government): The government will not repeat what has been expressed in their memorial, but will complement its previous submissions by responding to the questions communicated by your court and by addressing the submissions of Telfi.
GR1 (Government): As the submissions of third party interveners mostly address the right to anonymous commenting and the rights of the hosts in the meaning of EU Directive 2000-31, it is the aspects which are not the subject matter of this case, as will be shown later, we consider their submissions for the most part to be irrelevant.
GR1 (Government): For the adjudication of the concrete case before your court, including for answering the first question about whether Telfi was to be considered a publisher, the facts of the specific case are of utmost importance.
GR1 (Government): Primarily, the government note that Telfi has never contested that it was the publisher of the article under question.
GR1 (Government): The fact that comments formed part of Telfi's journalistic activity in turn is confirmed by the following aspects, which in aggregate were the basis for the domestic court's deliberations that Telfi was a disclosure or publisher of the comments and not a passive host.
GR1 (Government): I hereby also refer to Appendix 1 to the government memorial, which is an extract from Telfi's portal of 2006.
GR1 (Government): Telfi itself chose the articles it published, titled them, invited readers to comment them, set the rules and prohibited off the subject comments, although in 2006 it did not demand the rules to be accepted.
GR1 (Government): It then moderated and published the comments and highlighted the number of comments in red right in the end or under the title.
GR1 (Government): In 2006, the commenting board was directly under the article and comments could be uploaded without any registration or identification and one could read them just one after one click without leaving Telfi's webpage.
GR1 (Government): Nobody except Telfi could amend or delete the comments.
GR1 (Government): Although third party interveners have noted that it is normal that hosts can remove the content, the emphasis here is that the commentators could not.
GR1 (Government): They lost any control over the comments.
GR1 (Government): In addition, Telfi has expressly set forth in its terms of use that the copyright to everything on its news portal, except specific listed pages which are not part of this dispute, belongs to Telfi.
GR1 (Government): Further, Telfi listed the articles according to the number of comments and the articles with more comments also stayed on the top of the page longer.
GR1 (Government): Thus the commercial interest was obvious because more clicks meant more commercials, it is more income.
GR1 (Government): At the same time, by listing the articles and relating their lifetime to the number of comments, Telfi had full knowledge of the articles which attracted more public interest.
GR1 (Government): In this case, the article on the question drew a lot of attention.
GR1 (Government): It had 185 comments.
GR1 (Government): Thus it was obvious for Telfi that among such a high number of comments, there could be insulting and offending ones, especially because the theme of the article was negative, which has been confirmed by Telfi, as will be shown later.
GR1 (Government): Proceeding from these facts, the Estonian courts reached a well-considered conclusion that Telfi, who had integrated the commenting board to its news portal and had effective control and economic interest over the comments, should be identified as a publisher.
GR1 (Government): Your court has asked whether the EU Directive 2000-31 has any relevance to the resolution of a question of publisher.
GR1 (Government): I refer to the government's memorial where the non-applicability of the directive has been thoroughly explained in paragraphs 57 to 67.
GR1 (Government): The domestic courts expressly followed the recital 42, according to which the directive covers only cases where the activity of the information society service provider is limited to mere technical, passive and automatic nature, and came to the conclusion that the special law EU directive is not applicable.
GR1 (Government): Hereby I also refer to the ECJ case law regarding that directive, judgments in Google AdWords and Loral ePay, that the domestic courts are best placed to be aware of the actual terms on which the service is supplied and decide on the fact or the question of being or not a host.
GR1 (Government): The same approach should be taken in respect of the question related to the notion of publisher.
GR1 (Government): Directive 2000-31 does not cover active online news publishers whose activities are not covered by section 4 of chapter 2 of the directive.
GR1 (Government): As noted, the domestic courts made their decision about applicable law after first ascertaining that EU law was not applicable.
GR1 (Government): On the other hand, and I refer to our memorial, paragraphs 15, 16, 58 and 59, the applicant itself has struggled throughout the proceedings to identify its activities.
GR1 (Government): It has alleged to be a provider of a caching service, a hosting service and even as a mere transmitter.
GR1 (Government): Though also in your court, Delfi has not submitted any convincing arguments how its role could be seen as neutral.
GR1 (Government): Thus if Delfi did not agree with the domestic courts that EU law was not applicable, although in five proceedings it was established, it should have asked a preliminary ruling request regarding the interpretation of a notion host to be sent to the ECJ.
GR1 (Government): Your mission to do that renders Delfi's allegations about the collision of obligations on the EU law arbitrary and ill-placed.
GR1 (Government): Your court in the question about the notion of publisher has also referred to the Council of Europe recommendations of 2011 and 2014.
GR1 (Government): It should be kept in mind that these texts did not exist in 2006 and 2009 when Delfi's case was adjudicated by the domestic courts.
GR1 (Government): Everything related to internet changes so quickly that it would not be proper to evaluate or assess Delfi's actions in 2006 nor the domestic court judgments in the light of any new standard setting documents as your court has acknowledged in SH and others versus Austria or in Schalk and Kopp versus Austria.
GR1 (Government): Should your court still assess the new documents?
GR1 (Government): The recommendation on a guide to human rights on internet of 16 April 2014 does not concern the notion of publisher but notes that just like in the offline world, those that launch content to an audience must evaluate if freedom of expression can be limited with regard to the protection of any other rights.
GR1 (Government): And with reference to your court's case law, it has been noted that the rights guaranteed under Articles 8 and 10 deserve equal respect.
GR1 (Government): The same is underlined in the Council of Europe Declaration of 2003 which for the rest refers to Section 4 of the EU Directive and is not applicable regarding the notion of publisher.
GR1 (Government): In the recommendation on a new notion of media of 21 September 2011, it has been noted that the role of media has not changed.
GR1 (Government): News media's aim is still to produce and disseminate information to the wider public.
GR1 (Government): In that respect, it confirms the position taken by Estonian court years earlier that publishing online news and comments to them is equally considered to be media with respective liabilities.
GR1 (Government): Telvi itself in its memorial and today has stated that there are only two options, either to be a traditional publisher or to be an intermediary and has defined itself to be an intermediary.
GR1 (Government): It is not clear what is the difference between a traditional and any other publisher.
GR1 (Government): For Telvi, but according to the Estonian civil law and case law, everybody who makes information available to third persons is considered to be a discloser, a publisher, regardless of the means used for the publication as was also confirmed by the Supreme Court in Telvi's case.
GR1 (Government): In the context of this case, it is of utmost importance that also the wider public in Estonia perceives Telvi's news and comments as an undivided source for information.
GR1 (Government): According to the study carried out by the Open Estonia Foundation in 2013, in Estonia the comments are read as an inseparable part of an article, referred to in our memorial paragraph 27.
GR1 (Government): Having established that Telvi was a publisher, I will turn to your court's second question.
GR1 (Government): What were the information society services the applicant company offered in the context of the present case?
GR1 (Government): The government noted that the definition of information society services proceeds from EU Directive 98-48 amending the EU Directive 98-34.
GR1 (Government): Information society service is any service normally provided for remuneration at a distance by electronic means and at the individual request of a recipient of the service.
GR1 (Government): This very broad definition covers different types of information services but does not establish a general liability regime applicable to all activities of the service providers.
GR1 (Government): Directive 2000-31 provides only for a system of specific liability exemptions for maid transmitting, cashing and hosting.
GR1 (Government): If a service does not qualify for an exemption under that directive, liability will be determined by the national law of the respective member state.
GR1 (Government): As the Estonian court established that Telvi in this case did not provide any of the information society services which could exempt it from liability under that directive, general civil law was applicable to its journalistic activities.
GR1 (Government): As both Telvi and third party interveners have brought comparisons with social media networks, blogs, internet marketplaces and so on, the government find it important here to briefly explain the inappropriateness of these examples too.
GR1 (Government): Generally one cannot compare a webpage forming a unified content service and the pure sites for expression of opinion like Facebook, Twitter and so on.
GR1 (Government): It was acknowledged in principle in the ECJ judgment, Saban versus Netlog, when Netlog was considered to be a host because it had created a social network where a registered person received a personal data space, a profile which he could create himself.
GR1 (Government): Users could inter-alia, keep a diary, indicate their hobbies and interests, show who their friends are, display personal photos or publish video clips.
GR1 (Government): Such a description has no similarities with Telvi's news portal's activities the government described just a while ago, including the difference that each registered user has a power and control over the uploaded information in social media networks, which is not the case in Telvi's commentary.
GR1 (Government): Also parallels with an online marketplace, eBay or a search engine Google are not justified because Telvi does much more than eBay or Google.
GR1 (Government): Telvi's activities not restricted to the hosting of information posted on the portal by third parties, which has been admitted by Telvi itself.
GR1 (Government): Thus at the very outset no parallels could be brought with the social media networks or forums on online marketplaces and the news portals like Telvi.
GR1 (Government): Thus there is no basis to conclude, and I refer to the words of Telvi, that Telvi's judgment is capable of amputating the public sphere of valuable opinions, for example in social media networks.
GR1 (Government): The government also underlined that persons having been qualified as hosts have never been found liable under the general civil law regulation in Estonia, neither before Telvi's judgment or after it.
GR1 (Government): For example when a complaint was submitted against a blog that was hosted by Google, Google as a provider of a blogging serving was considered to be a host whose obligation was to disclose an IP address of a blog owner.
GR1 (Government): It's the Harjo County Court ruling of 5th August 2013.