GRAND CHAMBER
 
 
 
 
 
 
 
CASE OF DELFI AS v. ESTONIA
 
(Application no. 64569/09)
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
 
16 June 2015
 
 
 
 
 
 
 
This judgment is final. In the case of Delfi AS v. Estonia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Dean Spielmann, President,
 Josep Casadevall,
 Guido Raimondi,
 Mark Villiger,
 Işıl Karakaş,
 Ineta Ziemele,
 Boštjan M. Zupančič,
 András Sajó,
 Ledi Bianku,
 Nona Tsotsoria, 
 Vincent A. De Gaetano,
 Angelika Nußberger,
 Julia Laffranque,
 Linos-Alexandre Sicilianos,
 Helena Jäderblom,
 Robert Spano,
 Jon Fridrik Kjølbro, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on 9 July 2014 and 18 March 2015,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 64569/09) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Delfi AS, a public limited liability company registered in Estonia (“the applicant company”), on 4 December 2009. 2. The applicant company was represented by Mr V. Otsmann and Ms K. Turk, lawyers practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3. 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. 4. The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1) and the application was assigned to the newly composed First Section. On 10 October 2013 a Chamber composed of Isabelle Berro-Lefèvre, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Ksenija Turković, Dmitry Dedov, judges, and André Wampach, Deputy Section Registrar, delivered its judgment. It decided unanimously to declare the application admissible and held that there had been no violation of Article 10 of the Convention. 5. On 8 January 2014 the applicant company requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and a panel of the Grand Chamber accepted the request on 17 February 2014. 6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7. The applicant company and the Government each filed further observations on the merits (Rule 59 § 1). 8. In addition, third-party comments were received from the following organisations, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 (a)): the Helsinki Foundation for Human Rights; the non-governmental organisation, Article 19; Access; Media Legal Defence Initiative, acting together with its twenty-eight associated organisations; and the European Digital Media Association, the Computer & Communications Industry Association and the pan-European association of European Internet Services Providers Associations, acting jointly. 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 9 July 2014 (Rule 59 § 3). There appeared before the Court:
(a)  for the Government
Ms M. Kuurberg,  Agent,
Ms M. Kaur, 
Ms K. Mägi,  Advisers;
(b)  for the applicant company
Mr V. Otsmann,
Ms K. Turk, Counsel. The Court heard addresses by Mr Otsmann, Ms Turk and Ms Kuurberg, as well as their replies to questions put by Judges Ziemele, Spano, Raimondi, Villiger and Bianku. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant company is a public limited liability company (aktsiaselts), registered in Estonia. A. Background to the case
11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia, and also operates in Latvia and Lithuania. 12. At the material time, at 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. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms. 13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (Estonian for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, comments that included certain stems of obscene words were automatically deleted. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately. 14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi’s website there were Rules on posting comments which included the following. “The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit the comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ... Delfi prohibits comments whose content does not comply with good practice. These are comments that
–  contain threats;
–  contain insults;
–  incite hostility and violence;
–  incite illegal activities ...
–  contain off-topic links, spam or advertisements;
–  are without substance and/or off topic;
–  contain obscene expressions and vulgarities ... Delfi reserves the right to remove such comments and restrict their authors’ access to the writing of comments ...”
The functioning of the notice-and-take-down system was also explained in the Rules on posting comments. 15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about the incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure freedom of expression as well as the protection of everyone’s honour and good name, including sections 1043 and 1046 of the Obligations Act (Võlaõigusseadus). B. Article and comments published on the Internet news portal
16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “SLK” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. At the material time, L. was a member of the supervisory board of SLK and the company’s sole or majority shareholder. 17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed at L. 18. On 9 March 2006 L.’s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments. “1. (1) there are currents in [V]äinameri
(2)  open water is closer to the places you referred to, and the ice is thinner. Proposal – let’s do the same as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag
2.  bloody shitheads...
they’re loaded anyway thanks to that monopoly and State subsidies and have now started to worry that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!
3.  good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!
4.  [little L.] go and drown yourself
5.  aha... [I] hardly believe that that happened by accident... assholes fck
6.  rascal!!! [in Russian]
7. What are you whining for, knock this bastard down once and for all[.] In future the other ones ... will know what they risk, even they will only have one little life.
8.  ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he. 9. “a good man lives a long time, a shitty man a day or two”
10. If there was an ice road, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it’s your fault
11.  and can’t anyone stand up to these shits?
12.  inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.
13.  wonder whether [L.] won’t be knocked down in Saaremaa? screwing one’s own folk like that. 14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this. Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the State is powerless towards them – it is really them who govern the State), because they only live for today. Tomorrow, the flood.
15.  this [V.] will one day get hit with a cake by me.
damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way
16.  bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!! 17. Estonian State, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram’s Michaelmas.[1] Actually feel sorry for [L.] – he’s a human, after all... :D :D :D
18.  ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :)
19.  fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year
20.  you can’t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the State and [L.] do not care about the people’s opinion) ... just for fun, with no greed for money – I pee into [L.’s] ear and then I also shit onto his head. :)”
19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company. 20. On 23 March 2006 the applicant company responded to the request from L.’s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages. C. Civil proceedings against the applicant company
21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company. 22. At the hearing of 28 May 2007, the representatives of the applicant company submitted, inter alia, that in cases like that concerning the “Bronze Night” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, on its own initiative. 23. By a judgment of 25 June 2007, L.’s claim was dismissed. The County Court found that the applicant company’s liability was excluded under the Information Society Services Act (Infoühiskonna teenuse seadus), which was based on 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 (Directive on electronic commerce). The court considered that the comments section on the applicant company’s news portal was to be distinguished from its journalistic section. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them. 24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company’s liability was excluded under the Information Society Services Act. The County Court’s judgment was quashed and the case was referred back to the first-instance court for fresh consideration. 25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company. 26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal’s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had indicated on its website that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments. 27. The County Court found that the news article itself published on the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory, and impaired L.’s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L.’s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage. 28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims. 29. The Court of Appeal rejected the applicant company’s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to post comments. Thus, the applicant company was a provider of content services rather than of technical services. 30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal’s judgment in substance, but partly modified its reasoning. 31. The Supreme Court held as follows. “10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal’s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure. 11. The parties do not dispute the following circumstances:
(a)  on 24 January 2006 the defendant’s Internet portal ‘Delfi’ published an article entitled ‘SLK Destroyed Planned Ice Road’;
(b)  the defendant provided visitors to the Internet portal with the opportunity to comment on articles;
(c)  of the comments published [avaldatud[2]] on the aforementioned article, twenty contain content which is derogatory towards the plaintiff [L.];
(d)  the defendant removed the derogatory comments after the plaintiff’s letter of 9 March 2006. 12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the content of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful content. 13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act]. According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to this provision, ‘information society services’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service. Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; (b) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider’s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the content of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information. Since the Information Society Services Act is based on Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by Recital 42 of the preamble to the Directive, according to which the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘content services’ who have control over the content of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive. The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments [hinnangud] and opinions (comments). In the comments section, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant’s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the author of the comments does not mean that the defendant has no control over the comments section. The defendant sets out the rules for the comments section and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant’s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not lead to the conclusion that the publishing of comments is not under the defendant’s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comments section, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case. 14. It is not disputed that the defendant is the publisher of an article entitled ‘SLK Destroyed Planned Ice Road’, published on the Delfi Internet portal on 24 January 2006. The County Court also found that the defendant must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the authors of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the authors of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant [Delfi]. The Chamber has explained the definitions of “disclosure” and “discloser” in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [avaldamine] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [avaldamine] of information in the media, the discloser/publisher [avaldaja] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ajakirjanduslik tegevus]. At the same time, because of the nature of Internet media [internetiajakirjandus], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [trükiajakirjanduse väljaanne]. While the publisher [(väljaandja) of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [väljaandja] of printed media and an Internet portal operator are publishers/disclosers [avaldajad] as entrepreneurs. In cases concerning a value judgment [väärtushinnang] that prejudices and denigrates a person’s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of the Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [hinnangud] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public). 15. In reply to the allegations in the defendant’s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following. The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone’s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person’s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person’s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person’s honour and good name. In the interests of the protection of a person’s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff’s honour was not justified and was therefore unlawful; as there was no discussion of the [news] topic in the comments, the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Obligations Act is interpreted in conformity with the Constitution, injuring a person’s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats. The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the authors of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1)(4) of the Obligations Act). 16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant’s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless. On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful content. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person’s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant’s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [süü] (section 1050(1) of the Obligations Act).”
D. Subsequent developments
32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the Rules on posting comments. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the Rules on posting comments was monitored as well. According to the information published, the number of comments posted by Delfi’s readers in August 2009 had been 190,000. Delfi’s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The percentage of defamatory comments had been less than 0.5% of the total number of comments. II. RELEVANT DOMESTIC LAW AND PRACTICE
33. The Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) provides as follows. Article 17
“No one’s honour or good name shall be defamed.”
Article 19
“1. Everyone has the right to free self-realisation. 2. Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties.”
Article 45
“1. Everyone has the right freely to disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for State and local government public servants, to protect a State or business secret or information received in confidence which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice. 2. There is to be no censorship.”
34. Section 138 of the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus) provides that rights are to be exercised and obligations performed in good faith. A right must not be exercised in an unlawful manner or with the aim of causing damage to another person. 35. Subsection 2 of section 134 of the Obligations Act (Võlaõigusseadus) provides:
“In the case of an obligation to compensate for damage arising from ... a breach of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the breach, in particular by physical or emotional distress.”
36. Section 1043 of the Obligations Act provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) must compensate for the damage if the tortfeasor is culpable (süüdi) of causing the damage or is liable for causing the damage pursuant to the law. 37. Section 1045 of the Obligations Act provides that the causing of damage is unlawful if, inter alia, it results from a breach of a personality right of the victim. 38. The Obligations Act further provides. Section 1046 – Unlawfulness of damage to personality rights
“(1)  Injuring a person’s honour, inter alia, by passing an undue value judgment, unjustified use of a person’s name or image, or breaching the inviolability of a person’s private life or another personality right, is unlawful unless otherwise provided by law. In establishing such unlawfulness, the type of the breach, the reason and motive for the breach and the gravity of the breach relative to the aim pursued thereby shall be taken into consideration. (2)  The breach of a personality right is not unlawful if the breach is justified in view of other legal rights protected by law and the rights of third parties or public interests. In such cases, unlawfulness shall be established on the basis of a comparative assessment of the different legal rights and interests protected by law.”
Section 1047 – Unlawfulness of disclosure of incorrect information
“(1)  A breach of personality rights or interference with the economic or professional activities of a person by way of disclosure [avaldamine] of incorrect information, or by way of incomplete or misleading disclosure of information concerning the person or the person’s activities, is unlawful unless the person who discloses such information proves that, at the time of such disclosure, he or she was not aware and was not required to be aware that such information was incorrect or incomplete. (2)  Disclosure of defamatory matters concerning a person, or matters which may adversely affect a person’s economic situation, is deemed to be unlawful unless the person who discloses such matters proves that they are true. (3)  Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential breach. (4)  In the event of disclosure of incorrect information, the victim may demand that the person who has disclosed such information refute the information or publish a correction at his or her own expense, regardless of whether the disclosure of the information was unlawful or not.”
Section 1050 – Culpability [süü] as basis for liability
“(1)  Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable [süüdi] of causing the damage. (2)  The situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration in the assessment of the culpability [süü] of the person for the purposes of this Chapter. (3)  If several persons are liable for compensation for damage and, pursuant to law, one or more of them are liable for compensation for unlawfully caused damage regardless of whether or not they are culpable, the wrongfulness of the behaviour and the form of the culpability of the persons liable for compensation for the damage shall be taken into consideration in apportioning among them the obligation to compensate for the damage.”
Section 1055 – Prohibition on damaging actions
“(1)  If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand the cessation of the behaviour causing the damage or of the threats of such behaviour. In the event of bodily injury, damage to health or a breach of the inviolability of personal life or of any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited from approaching others (restraining order), that the use of housing or communications be regulated, or that other similar measures be applied. (2)  The right to demand the cessation of behaviour causing damage as specified in subsection (1) of this section shall not apply if it is reasonable to expect that such behaviour can be tolerated in conditions of human coexistence or in view of a significant public interest. In such cases, the victim shall have the right to make a claim for compensation for damage caused unlawfully.
...”
39. The Information Society Services Act (Infoühiskonna teenuse seadus) provides as follows. Section 8 – Restricted liability in the case of mere transmission of information 
and provision of access to a public data communications network
“(1)  Where a service is provided that consists of the mere transmission in a public data communication network of information provided by a recipient of the service, or the provision of access to a public data communication network, the service provider shall not be liable for the information transmitted, on condition that the provider:
1.  does not initiate the transmission;
2.  does not select the receiver of the transmission; and
3.  does not select or modify the information contained in the transmission. (2)  The acts of transmission and of provision of access within the meaning of subsection 1 of this section include the automatic, intermediate and transient storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission in the public data communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.”
Section 9 – Restricted liability in the case of temporary storage 
of information in cache memory
“(1)  Where a service is provided that consists of the transmission in a public data communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information if the method of transmission concerned requires caching for technical reasons and the caching is performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service at their request, on condition that:
1.  the provider does not modify the information;
2.  the provider complies with conditions on access to the information;
3.  the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used in the industry;
4.  the provider does not interfere with the lawful use of technology which is widely recognised and used by the industry to obtain data on the use of the information;
5.  the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court, the police or a State supervisory authority has ordered such removal.”
Section 10 – Restricted liability in the case of provision of an 
information storage service
“(1)  Where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that:
1.  the provider does not have actual knowledge of the content of the information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent;
2.  the provider, upon obtaining knowledge or awareness of the facts specified in paragraph 1 of this subsection, acts expeditiously to remove or to disable access to the information. (2)  Subsection 1 of this section shall not apply when the recipient of the service is acting under the authority or the control of the provider.”
Section 11 – No obligation to monitor
“(1)  A service provider specified in sections 8 to 10 of this Act is not obliged to monitor information upon the mere transmission thereof or provision of access thereto, temporary storage thereof in cache memory or storage thereof at the request of the recipient of the service, nor is the service provider obliged actively to seek information or circumstances indicating illegal activity. (2)  The provisions of subsection 1 of this section shall not restrict the right of an official exercising supervision to request the disclosure of such information by a service provider. (3)  Service providers are required promptly to inform the competent supervisory authorities of alleged illegal activities undertaken or information provided by recipients of their services specified in sections 8 to 10 of this Act, and to communicate to the competent authorities information enabling the identification of recipients of their service with whom they have storage agreements.
...”
40. Articles 244 et seq. of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) provide for pre-trial taking of evidence (eeltõendamismenetlus) – a procedure in which evidence may be taken before the judicial proceedings have even been initiated if it can be presumed that evidence might be lost or that using the evidence afterwards might involve difficulties. 41. In a judgment of 21 December 2005 (case no. 3-2-1-95-05), the Supreme Court found that, for the purposes of section 1047 of the Obligations Act, disclosure (avaldamine) meant disclosure of information to third parties. A person who transmitted information to a media publisher (meediaväljaanne) could be considered a discloser (avaldaja) even if he or she was not the publisher of the article (ajaleheartikli avaldaja) in question. The Supreme Court has reiterated the same position in its subsequent judgments, for example in a judgment of 21 December 2010 (case no. 3‑2‑1-67-10). 42. In a number of domestic cases, actions for defamation have been brought against several defendants, including, for example, a publisher of a newspaper and the author of an article (Supreme Court judgment of 7 May 1998 in case no. 3-2-1-61-98), a publisher of a newspaper and an interviewee (Supreme Court judgment of 1 December 1997 in case no. 3‑2‑1-99-97), and solely against a publisher of a newspaper (Supreme Court judgments of 30 October 1997 in case no. 3-2-1-123-97, and 10 October 2007 in case no. 3-2-1-53-07). 43. Following the Supreme Court’s judgment of 10 June 2009 in the case giving rise to the present case before the Court (case no. 3-2-1-43-09), several lower courts have resolved the issue of liability in respect of comments relating to online news articles in a similar manner. Thus, in a judgment of 21 February 2012, the Tallinn Court of Appeal (case no. 2‑08‑76058) upheld a lower court’s judgment concerning a defamed person’s claim against a publisher of a newspaper. The publisher was found liable for defamatory online comments posted by readers in the newspaper’s online comments section. The courts found that the publisher was a content service provider. They rejected the publisher’s request for a preliminary ruling from the Court of Justice of the European Union (CJEU), finding that it was evident that the defendant did not satisfy the criteria for a passive service provider as previously interpreted by the CJEU and the Supreme Court, and that the relevant rules were sufficiently clear. Therefore, no new directions from the CJEU were needed. The courts also noted that, pursuant to the judgment of 23 March 2010 of the CJEU (Joined Cases C‑236/08 to C‑238/08, Google France SARL and Google Inc. [2010] ECR I‑2417), it was for the national courts to assess whether the role played by a service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. The courts considered that this was not the case in the matter before them. As the publisher had already deleted the defamatory comments by the time of the delivery of the judgment, no ruling was made on that issue; the plaintiff’s claim in respect of non-pecuniary damage was dismissed. A similar judgment was handed down by the Tallinn Court of Appeal on 27 June 2013 (case no. 2-10-46710). In that case as well, an Internet news portal was held liable for defamatory comments posted by readers and the plaintiff’s claim in respect of non-pecuniary damage was dismissed. III. RELEVANT INTERNATIONAL INSTRUMENTS
A. Council of Europe documents
44. On 28 May 2003, at the 840th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted a declaration on freedom of communication on the Internet. The relevant parts of the declaration read as follows. “The member states of the Council of Europe,
... Convinced also that it is necessary to limit the liability of service providers when they act as mere transmitters, or when they, in good faith, provide access to, or host, content from third parties;
Recalling in this respect 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 (Directive on electronic commerce);
Stressing that freedom of communication on the Internet should not prejudice the human dignity, human rights and fundamental freedoms of others, especially minors;
Considering that a balance has to be found between respecting the will of users of the Internet not to disclose their identity and the need for law enforcement authorities to trace those responsible for criminal acts;
... Declare that they seek to abide by the following principles in the field of communication on the Internet:
Principle 1: Content rules for the Internet
Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery.
... Principle 3: Absence of prior state control
Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries. Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality.
... Principle 6: Limited liability of service providers for Internet content
Member states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity. Member states should ensure that service providers are not held liable for content on the Internet when their function is limited, as defined by national law, to transmitting information or providing access to the Internet. In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information. When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information. In all cases, the above-mentioned limitations of liability should not affect the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of the law. Principle 7: Anonymity
In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police.”
45. In its Recommendation CM/Rec(2007)16 to member States on measures to promote the public service value of the Internet (adopted on 7 November 2007), the Committee of Ministers noted that the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights. It recommended that the member States draw up a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies. 46. Recommendation CM/Rec(2011)7 of the Committee of Ministers to member states on a new notion of media (adopted on 21 September 2011) reads as follows. “... The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states:
–  adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents;
–  review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people’s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship;
–  apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society;
...”
The Appendix to the Recommendation states as follows, in so far as relevant. “7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe.
... 30. Editorial control can be evidenced by the actors’ own policy decisions on the content to make available or to promote, and on the manner in which to present or arrange it. Legacy media sometimes publicise explicitly written editorial policies, but they can also be found in internal instructions or criteria for selecting or processing (for example verifying or validating) content. In the new communications environments, editorial policies can be embedded in mission statements or in terms and conditions of use (which may contain very detailed provisions on content), or may be expressed informally as a commitment to certain principles (for example netiquette, motto).
... 32. Editorial process can involve users (for example peer review and take down requests) with ultimate decisions taken according to an internally defined process and having regard to specified criteria (reactive moderation). New media often resort to ex post moderation (often referred to as post-moderation) in respect of user generated content, which may at first sight be imperceptible. Editorial processes may also be automated (for example in the case of algorithms ex ante selecting content or comparing content with copyrighted material).
... 35. Again, it should be noted that different levels of editorial control go along with different levels of editorial responsibility. Different levels of editorial control or editorial modalities (for example ex ante as compared with ex post moderation) call for differentiated responses and will almost certainly permit best to graduate the response. 36. Consequently, a provider of an intermediary or auxiliary service which contributes to the functioning or accessing of a media but does not – or should not – itself exercise editorial control, and therefore has limited or no editorial responsibility, should not be considered to be media. However, their action may be relevant in a media context. Nonetheless, action taken by providers of intermediary or auxiliary services as a result of legal obligations (for example take down of content in response to a judicial order) should not be considered as editorial control in the sense of the above.
... 63. The importance of the role of intermediaries should be underlined. They offer alternative and complementary means or channels for the dissemination of media content, thus broadening outreach and enhancing effectiveness in media’s achievements of its purposes and objectives. In a competitive intermediaries and auxiliaries market, they may significantly reduce the risk of interference by authorities. However, given the degree to which media have to rely on them in the new ecosystem, there is also a risk of censorship operated through intermediaries and auxiliaries. Certain situations may also pose a risk of private censorship (by intermediaries and auxiliaries in respect of media to which they provide services or content they carry).”
47. On 16 April 2014 Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Guide reads as follows. Freedom of expression and information
“You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:
1.  you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy;
2.  restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight;
...
6.  you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed.”
B. Other international documents
48. In his report of 16 May 2011 (A/HRC/17/27) to the Human Rights Council, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following. “25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).
... 27. In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate. ...
... 43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf ...
... 74. Intermediaries play a fundamental role in enabling Internet users to enjoy their right to freedom of expression and access to information. Given their unprecedented influence over how and what is circulated on the Internet, States have increasingly sought to exert control over them and to hold them legally liable for failing to prevent access to content deemed to be illegal.”
49. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media and the OAS (Organization of American States) Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following:
“No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content.”
IV. RELEVANT EUROPEAN UNION AND COMPARATIVE LAW MATERIAL
A. European Union instruments and case-law
1. Directive 2000/31/EC
50. The relevant parts of 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 (Directive on electronic commerce) provide as follows. “(9)  The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.
... (42)  The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. (43)  A service provider can benefit from the exemptions for ‘mere conduit’ and for ‘caching’ when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. (44)  A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘mere conduit’ or ‘caching’ and as a result cannot benefit from the liability exemptions established for these activities. (45)  The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it. (46)  In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information. (47)  Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation. (48)  This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.
... Article 1 
Objective and scope
1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.
... Article 2 
Definitions
For the purpose of this Directive, the following terms shall bear the following meanings:
(a)  ‘information society services’: services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC;
(b)  ‘service provider’: any natural or legal person providing an information society service;
(c)  ‘established service provider’: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider;
... Section 4: Liability of intermediary service providers
Article 12 
‘Mere conduit’
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a)  does not initiate the transmission;
(b)  does not select the receiver of the transmission; and
(c)  does not select or modify the information contained in the transmission. 2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement. Article 13 
‘Caching’
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service upon their request, on condition that:
(a)  the provider does not modify the information;
(b)  the provider complies with conditions on access to the information;
(c)  the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(d)  the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e)  the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement. 2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement. Article 14 
Hosting
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a)  the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b)  the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information. Article 15 
No general obligation to monitor
1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. 2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.”
2. Directive 98/34/EC as amended by Directive 98/48/EC
51. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC, provides as follows:
Article 1
“For the purposes of this Directive, the following meanings shall apply: 
...
2.  ‘service’, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition:
–  ‘at a distance’ means that the service is provided without the parties being simultaneously present,
–  ‘by electronic means’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,
–  ‘at the individual request of a recipient of services’ means that the service is provided through the transmission of data on individual request. An indicative list of services not covered by this definition is set out in Annex V. This Directive shall not apply to:
–  radio broadcasting services,
–  television broadcasting services covered by point (a) of Article 1 of Directive 89/552/EEC.”
3. Case-law of the CJEU
52. In a judgment of 23 March 2010 (Joined Cases C‑236/08 to C‑238/08 Google France SARL and Google Inc.), the CJEU considered that, in order to establish whether the liability of a referencing service provider could be limited under Article 14 of the Directive on electronic commerce, it was necessary to examine whether the role played by that service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. Article 14 of the Directive on electronic commerce had to be interpreted as meaning that the rule laid down therein applied to an Internet referencing service provider in the event that that service provider had not played an active role of such a kind as to give it knowledge of or control over the data stored. If it had not played such a role, that service provider could not be held liable for the data which it had stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it had failed to act expeditiously to remove or to disable access to the data concerned. 53. In a judgment of 12 July 2011 (Case C‑324/09, L’Oréal SA and Others), the CJEU ruled that Article 14 § 1 of the Directive on electronic commerce was to be interpreted as applying to the operator of an online marketplace where that operator had not played an active role allowing it to have knowledge of or control over the data stored. The operator played such a role when it provided assistance which entailed, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace had not played such an active role and the service provided fell, as a consequence, within the scope of Article 14 § 1 of the Directive on electronic commerce, the operator none the less could not, in a case which could result in an order to pay damages, rely on the exemption from liability provided for under that Article if it had been aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question had been unlawful and, in the event of it being so aware, had failed to act expeditiously in accordance with Article 14 § 1 (b) of the Directive on electronic commerce. 54. In a judgment of 24 November 2011 (Case C-70/10, Scarlet Extended SA), the CJEU ruled that an injunction could not be made against an Internet service provider requiring it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software, which applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claimed to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which would infringe copyright. 55. In a judgment of 16 February 2012 (Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM)) the CJEU held that the Directive on electronic commerce and Directives 2000/31/EC, 2001/29/EC and 2004/48/EC precluded a national court from issuing an injunction against a hosting service provider requiring it to install a system for filtering information stored on its servers by its service users, which applied indiscriminately to all those users, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying electronic files containing musical, cinematographic or audio-visual work in respect of which the applicant for the injunction claimed to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright. 56. In a judgment of 13 May 2014 (Case C-131/12, Google Spain SL and Google Inc.), the CJEU was called upon to interpret Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. It found that the activity of an Internet search engine was to be classified as “processing of personal data” within the meaning of Directive 95/46/EC and held that such processing of personal data, carried out by the operator of a search engine, was liable to affect significantly the fundamental rights to privacy and to the protection of personal data (guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union) when the search by means of that engine was carried out on the basis of an individual’s name, since that processing enabled any Internet user to obtain through the list of results a structured overview of the information relating to that individual that could be found on the Internet and thereby to establish a more or less detailed profile of him or her. Furthermore, the effect of the interference with the rights of the data subject was heightened on account of the important role played by the Internet and search engines in modern society, which rendered the information contained in such a list of results ubiquitous. In the light of the potential seriousness of that interference, it could not be justified merely by the economic interest of the operator. The CJEU considered that a fair balance should be sought between the legitimate interest of Internet users in having access to the information and the data subject’s fundamental rights. The data subject’s fundamental rights, as a general rule, overrode the interest of Internet users, but that balance might, however, depend on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information. The CJEU held that in certain cases the operator of a search engine was obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, even when its publication in itself on the web pages in question was lawful. That was so in particular where the data appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they had been processed and in the light of the time that had elapsed. 57. In a judgment of 11 September 2014 (Case C-291/13, Sotiris Papasavvas), the CJEU found that, since a newspaper publishing company which posted an online version of a newspaper on its website had, in principle, knowledge of the information which it posted and exercised control over that information, it could not be considered to be an “intermediary service provider” within the meaning of Articles 12 to 14 of Directive 2000/31/EC, whether or not access to that website was free of charge. Thus, it held that the limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31/EC did not apply to the case of a newspaper publishing company which operated a website on which the online version of a newspaper was posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on the website, since it had knowledge of the information posted and exercised control over that information, whether or not access to the website was free of charge. B. Comparative law material
58. From the information available to the Court, it would appear that in a number of the member States of the Council of Europe – which are also member States of the European Union – the Directive on electronic commerce, as transposed into national law, constitutes a primary source of law in the area in question. It would also appear that the greater the involvement of the operator in the third-party content before online publication – whether through prior censoring, editing, selection of recipients, requesting comments on a predefined subject or the adoption of content as the operator’s own – the greater the likelihood that the operator will be held liable for that content. Some countries have enacted certain further regulations specifically concerning the take-down procedures relating to allegedly unlawful content on the Internet, and provisions concerning distribution of liability in this context. THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
59. The applicant company complained that holding it liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided for in Article 10 of the Convention, which reads as follows. “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
60. The Government contested that argument. A. The Chamber judgment
61. In its judgment of 10 October 2013, the Chamber noted at the outset that the parties’ views diverged as to the applicant company’s role in the present case. According to the Government, the applicant company was to be considered the discloser of the defamatory comments, whereas the applicant company was of the opinion that its freedom to impart information created and published by third parties was at stake, and that the applicant company itself was not a publisher of the third-party comments. The Chamber did not proceed to determine the exact role to be attributed to the applicant company’s activities and noted that it was not, in substance, in dispute between the parties that the domestic courts’ decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention. 62. As regards the lawfulness of the interference, the Chamber rejected the applicant company’s argument that the interference with its freedom of expression was not “prescribed by law”. The Chamber observed that the domestic courts had found that the applicant company’s activities did not fall within the scope of the Directive on electronic commerce and the Information Society Services Act. It considered that it was not its task to take the place of the domestic courts and that it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Chamber was furthermore satisfied that the relevant provisions of the civil law – although they were quite general and lacked detail in comparison with, for example, the Information Society Services Act – along with the relevant case-law, made it clear that a media publisher was liable for any defamatory statements made in its publication. The Chamber had regard to the fact that the applicant company was a professional publisher which operated one of the largest news portals in Estonia, and also that a degree of notoriety had been attributable to comments posted in its commenting area. Against that background, the Chamber considered that the applicant company had been in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. 63. The Chamber further found that the restriction of the applicant company’s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. In the Chamber’s view, the fact that the actual authors of the comments were also in principle liable did not remove the legitimate aim of holding the applicant company liable for any damage to the reputation and rights of others. 64. As regards the proportionality of the interference, the Chamber noted that there was no dispute that the comments in question had been of a defamatory nature. In assessing the proportionality of the interference with the applicant company’s freedom of expression, the Chamber had regard to the following elements. It examined firstly the context of the comments, secondly, the measures applied by the applicant company in order to prevent or remove defamatory comments, thirdly, the liability of the actual authors of the comments as an alternative to the applicant company’s liability, and, fourthly, the consequences of the domestic proceedings for the applicant company. 65. In particular, the Chamber considered that the news article published by the applicant company that had given rise to the defamatory comments had concerned a matter of public interest and the applicant company could have foreseen the negative reactions and exercised a degree of caution in order to avoid being held liable for damaging the reputation of others. However, the prior automatic filtering and notice-and-take-down system used by the applicant company had not ensured sufficient protection for the rights of third parties. Moreover, publishing news articles and making readers’ comments on them public had been part of the applicant company’s professional activities and its advertising revenue depended on the number of readers and comments. The applicant company had been able to exercise a substantial degree of control over readers’ comments and it had been in a position to predict the nature of the comments a particular article was liable to prompt and to take technical or manual measures to prevent defamatory statements from being made public. Furthermore, there had been no realistic opportunity of bringing a civil claim against the actual authors of the comments as their identity could not easily be established. In any event, the Chamber was not convinced that measures allowing an injured party to bring a claim only against the authors of defamatory comments would have guaranteed effective protection of the injured party’s right to respect for his or her private life. It had been the applicant company’s choice to allow comments by non-registered users, and by doing so it had to be considered to have assumed a certain responsibility for such comments. For all the above reasons, and considering the moderate amount of damages the applicant company had been ordered to pay, the restriction on its freedom of expression was considered to have been justified and proportionate. There had accordingly been no violation of Article 10 of the Convention. B. The parties’ submissions to the Grand Chamber
1. The applicant company
(a)  General remarks
66. The applicant company argued that in today’s world, Internet media content was increasingly created by the users themselves. User-generated content was of high importance – comments on news stories and articles often raised serious debates in society and even informed journalists of issues that were not publicly known, thereby contributing to the initiation of journalistic investigations. The possibility for “everyone” to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship. 67. As regards user-generated content, the applicant company was of the opinion that it was sufficient for a host to expeditiously remove third-party content as soon as it became aware of its illegal nature. If this was deemed insufficient by the Court, anonymous public speech would be prohibited or there would be arbitrary restrictions on commenters’ freedom of communication by the intermediary, which would be impelled to err on the side of caution to avoid possible subsequent liability. (b)  Delfi’s role
68. The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments. It argued that intermediaries were not best suited to decide upon the legality of user-generated content. This was especially so in respect of defamatory content since the victim alone could assess what caused damage to his reputation. (c)  Lawfulness
69. The applicant company argued that the interference with its freedom of expression – including its right to store information and to enable users to impart their opinions – was not prescribed by law. It submitted that there was no legislation or case-law stating that an intermediary was to be considered a publisher of content which it was not aware of. On the contrary, the applicable law expressly prohibited the imposition of liability on service providers for third-party content. In this connection, the applicant company referred to the Directive on electronic commerce, the Estonian Information Society Services Act and the Council of Europe Declaration on freedom of communication on the Internet. The Directive provided for limited and notice-based liability with take-down procedures for illegal content. Service providers were exempted from liability where, upon obtaining actual knowledge of illegal activities, they acted expeditiously to remove or disable access to the information concerned. Such removal or disabling of access had to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level (Recital 46 of the Preamble to the Directive). The applicant company argued that this law was indisputably formulated with sufficient precision to enable a citizen to regulate his conduct. According to the applicant company, its behaviour had been in full compliance with the applicable law as it had removed the defamatory comments the same day it had been notified by the original plaintiff. 70. The applicant company further argued that even the existing tort law did not classify disseminators (postal workers, libraries, bookstores and others) as publishers. Thus, it remained entirely unclear how the existing tort law had been applied to a “novel area related to new technologies” as held in the Chamber judgment, that is, to an online news portal operator providing a service enabling users to interact with journalists and each other and to contribute valuable ideas to the discussion of matters of public interest. There was no law imposing an obligation on the applicant company to proactively monitor user comments. (d)  Legitimate aim
71. The applicant company did not dispute that the interference in question had a legitimate aim. (e)  Necessary in a democratic society
72. According to the applicant company, the interference was not necessary in a democratic society. It argued that as a result of the Chamber judgment it had two choices. Firstly, it could employ an army of highly trained moderators to patrol (in real time) each message board (for each news article) to screen any message that could be labelled defamatory (or that could infringe intellectual property rights, inter alia); at the end of the day, these moderators would, just in case, remove any sensitive comments and all discussions would be moderated so that they were limited to the least controversial issues. Otherwise, it could simply avoid such a massive risk and shut down these fora altogether. Either way, the technological capability to provide ordinary readers with an opportunity to comment freely on daily news and assume responsibility independently for their own comments would be abandoned. 73. The applicant company argued that the Supreme Court’s judgment had had a “chilling effect” on freedom of expression and that it had restricted the applicant company’s freedom to impart information. It amounted to the establishment of an obligation to censor private individuals. 74. In support of its argument that the interference was not necessary in a democratic society, the applicant company relied on the following factors. 75. Firstly, it argued that the comments were reactions from members of the public to an event caused by the Saaremaa Shipping Company and not to the article as such. Furthermore, the article was a balanced and neutral one. It addressed an issue of great importance to the residents of the biggest island of Estonia affecting their everyday lives. The readers’ negative reactions had not been caused by the article but by the shipping company. 76. Secondly, the applicant company had taken sufficient measures to prevent or remove defamatory comments; in the present case, the comments in question had been removed on the same day that the applicant company had been notified of them. 77. Thirdly, the applicant company argued that the actual authors of the comments should bear responsibility for their contents. It disagreed with the Chamber’s finding that it was difficult to establish the identity of the authors of the comments and contended that the authors’ identities could be established in the “pre-trial taking of evidence” procedure under Article 244 of the Code of Civil Procedure. Once the names and addresses of the authors were established, a claim against them could be brought without any difficulties. 78. Fourthly, the applicant company insisted that there was no pressing social need for a strict liability standard for service providers. It argued that there was a European consensus that no service provider should be liable for content of which it was not the author. Accordingly, the margin of appreciation afforded to the Contracting States in this respect was necessarily a narrow one. Furthermore, it considered that the modest sum it had been ordered to pay in compensation for non-pecuniary damage did not justify the interference. It also emphasised that if the applicant company enjoyed limited liability the original plaintiff would not have been left without a remedy – he could have sued the actual authors of the comments. The applicant company objected to the establishment of private censorship and contended that it was sufficient to have a two-pronged system for the protection of the rights of third parties: a notice-and-take-down system and the possibility of bringing a claim against the authors of defamatory comments. There was no convincingly established “pressing social need” for the liability of Internet service providers. 79. The applicant company also emphasised the importance of anonymity for free speech on the Internet; this encouraged the full involvement of all, including marginalised groups, political dissidents and whistle-blowers, and allowed individuals to be safe from reprisals. 80. Lastly, the applicant company contended that the domestic courts had clearly misinterpreted European Union (EU) law. It submitted that the Chamber judgment had created a collision of obligations and legal uncertainty since adhering to EU law on the issue of liability for host service providers would render the State liable under the Convention, whereas adhering to the test set out in the judgment would not be in conformity with EU law. 2. The Government
(a)  General remarks
81. The Government made the following remarks in respect of the scope of the case. Firstly, according to the Court’s case-law it was for the domestic courts to decide on the domestically applicable law and interpret it. Furthermore, interpretation of EU law was the task of the CJEU. The domestic courts, in reasoned decisions, had found that the Obligations Act, rather than the Directive on electronic commerce or the Information Society Services Act, was applicable. The Grand Chamber should also proceed from this presumption and the applicant company’s allegations regarding the applicability of EU law were inadmissible. Secondly, the Government stressed that there existed a number of different types of Internet portals and the issue of their operators’ liability could not be generalised. The present case was limited to the activities of the Delfi portal at the material time. In that connection the Government pointed out that Delfi had actively invited readers to comment on the articles it had chosen itself; it had published anonymous comments posted on those articles and in the same section; and the comments could be amended or deleted only by Delfi. The applicant company’s liability should be assessed in that specific context. 82. The Government emphasised that there was no dispute that the comments in question had been defamatory. 83. The Government noted that, despite the applicant company’s allegations to that effect, it had not been forced to disable anonymous comments or to change its business model. On the contrary, Delfi remained the largest Internet portal in Estonia; it was still possible to post anonymous comments on the portal and the number of comments had risen from 190,000 comments a month in 2009 to 300,000 in 2013. According to an article published on 26 September 2013, Delfi deleted 20,000 to 30,000 comments monthly (7-10% of all comments). Postimees, the second-largest portal, deleted up to 7% of a total of 120,000 comments. Both portals had five employees who dealt with taking down insulting comments. Since December 2013 Delfi had used a two-tier comments section where registered comments and anonymous comments were shown separately. (b)  Lawfulness
84. The Government insisted that the interference with the applicant company’s rights had been “prescribed by law”. They referred to the domestic legislation and case-law summarised in paragraphs 32 to 36, 38 and 39 of the Chamber judgment, as well as the Court’s relevant case-law as summarised in the Chamber judgment. The Government also pointed out that there was no Estonian case-law on the basis of which Delfi – which encouraged the posting of comments on the articles selected and published by it – could have presumed that the owner of an Internet portal as a new media publication was not liable for the damage caused by comments posted on its articles, which formed an integral part of the news and which only Delfi could administer. Further, by the time the domestic judgments had been handed down in Delfi, it was more than clear that Internet media had a wide influence over the public and that, in order to protect the private life of others, liability rules had to apply to new media as well. 85. The Government reiterated that the applicant company’s references to EU law and the Information Society Services Act should be disregarded. The Grand Chamber could only assess whether the effects of the interpretation of the Obligations Act were compatible with Article 10 § 2 of the Convention and could not assess the legislation the domestic courts had found not to be applicable. They also pointed out that the domestic courts had paid sufficient attention to the question whether the applicant company might be regarded as a caching or hosting service provider. However, they had found this not to be the case. In particular, in the event of hosting, the service provider merely provided a data storage service, while the stored data and their insertion, amendment, removal and content remained under the control of the service users. In Delfi’s comments section, however, commenters lost control of their comments as soon as they had entered them, and they could not change or delete them. Having regard also to the other aspects of the case – Delfi chose the articles and their titles; Delfi invited readers to comment and set the Rules on posting comments (including that the comments had to be related to the article); the amount of advertising revenue Delfi received increased the more comments were posted; Delfi also selectively monitored the comments – the domestic courts had found that Delfi had not acted only as a technical intermediary service provider and could not be classified either as a cache or as a host. The Government also emphasised that the CJEU had never adjudicated on a case similar to the Delfi case. In any event, even if the CJEU’s case-law, such as L’Oréal SA and Others (cited above), was of relevance, it could be concluded that the role played by Delfi was an active one and it could not be granted the exemptions from liability provided in the Directive on electronic commerce. (c)  Legitimate aim
86. The Government submitted that the interference with the applicant company’s rights under Article 10 had the legitimate aim of protecting the honour of others. (d)  Necessary in a democratic society
87. As regards the question whether the interference was necessary in a democratic society, the Government emphasised at the outset the importance of the balance between Articles 10 and 8 of the Convention. 88. The Government referred extensively to the relevant reasoning of the Chamber judgment. In addition, they emphasised the following. 89. Firstly, as regards the context of the comments, the Government noted that the domestic courts had attached importance to the fact that the selection and publication of the news articles and the publication of readers’ comments on these articles in the same section had been part of the applicant company’s professional activity as a discloser of information. Delfi invited readers to comment on its articles – often giving the articles provocative headlines and showing the number of comments on the main page immediately after the title of an article in bold red, so that commenting on an article would be more enticing – which in turn brought in advertising revenue. 90. Secondly, in respect of the measures applied by the applicant company, the Government stressed the importance of ensuring the protection of third parties in relation to the Internet, which had become an extensive medium available to the majority of the population and used on a daily basis. The Government added that the applicant company’s responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal – only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person’s honour were no longer sufficient because the offensive comments had already reached the general public and done the damage. The Government further argued that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason. 91. Thirdly, as regards the liability of the actual authors, the Government submitted that in civil proceedings – a remedy which was preferable to criminal remedies in defamation cases – investigative measures such as surveillance procedures were not accessible. In respect of the procedure for “pre-trial taking of evidence”, the Government argued that this was not a reasonable alternative in the case of anonymous comments for the following two reasons: (a) the relevant Internet Protocol (IP) addresses could be not always established, for example if the user data or the comment had been deleted or an anonymous proxy had been used; and (b) even if the computers used for posting the comments could be identified, it could still prove impossible to identify the persons who had posted them, for example in cases where a public computer, a Wi-Fi hotspot, a dynamic IP address or a server in a foreign country had been used, or for other technical reasons. 92. Fourthly, as regards the consequences of the domestic proceedings for the applicant company, the Government noted that Delfi had not needed to change its business model or disallow anonymous comments. In fact, the total number of comments – the majority of which were anonymous – had increased, while Delfi now employed five moderators. The Government also pointed out that the finding of liability was not aimed at obtaining huge or punitive awards of compensation. Indeed, in Delfi’s case the compensation it had been obliged to pay for non-pecuniary damage was negligible (EUR 320), and in the subsequent case-law (see paragraph 43 above) the courts had held that finding a violation or deleting a comment could be a sufficient remedy. The Government concluded that the applicant company’s civil liability had not had a “chilling effect” on the freedom of expression, but was justified and proportionate. 93. Lastly, referring to the legislation and practice of several European countries, the Government contended that there was no European consensus on or trend towards excluding the liability of an Internet portal owner which acted as a content service provider and the discloser of anonymous comments on its own articles. C. The third-party interveners’ submissions
1. The Helsinki Foundation for Human Rights
94. The Helsinki Foundation for Human Rights in Warsaw emphasised the differences between the Internet and traditional media. It noted that online services like Delfi acted simultaneously in two roles: as content providers with regard to their own news, and as host providers with regard to third-party comments. It submitted that moderation of user-generated content or the power to remove access to it should not be regarded as having effective editorial control. Intermediary service providers should not be treated as traditional media and should not be subject to the same liability regime. 95. The Helsinki Foundation argued that authors should be accountable for their defamatory comments and the State should provide a regulatory framework making it possible to identify and prosecute online offenders. At the same time, it also contended that the possibility of publishing anonymously on the Internet should be regarded as a value. 2. Article 19
96. Article 19 argued that one of the most innovative features of the Internet was the ease with which it allowed any person to express his or her views to the entire world without seeking the prior approval of publishers. Comment platforms enabled and promoted public debate in its purest form and this had very little to do with the provision of news. As a matter of fact and form, comments sections on news websites were better understood as newspapers appropriating the private discussion model that was native to the Internet rather than the other way round. Article 19 argued that making websites responsible for comments made by users would impose an unacceptable burden on websites. 97. Article 19 contended that the Directive on electronic commerce was meant to shield websites from liability for their users’ comments, regardless of their own content. Article 19 insisted that, while the normal liability rules should continue to apply to online news sites for the articles they published, they should be regarded as hosts – rather than publishers – for the purposes of the comments section on their website. As hosts, online news sites should in principle be immune from liability for third-party content in circumstances where they had not been involved in directly modifying the content in issue. They should not be held liable when they took all reasonable steps to remove content upon being notified, and they should not automatically be held liable simply because they decided not to remove a comment reported to them. 3. Access
98. According to Access, anonymity and pseudonymity supported the fundamental rights of privacy and freedom of expression. A regulatory prohibition on anonymous use of the Internet would constitute an interference with the rights to privacy and freedom of expression protected under Articles 8 and 10 of the Convention, and blanket restrictions on anonymous and pseudonymous expression would impair the very essence of these rights. Access referred to the long-standing case-law of several countries protecting the right to anonymous communication, both on and offline. 99. Furthermore, Access pointed out that services designed to provide enhanced confidentiality and anonymity while using the Internet had become more popular in the wake of revelations of mass surveillance online. It further argued that restricting Internet users to identified expression would harm the Internet economy, and referred to research which had concluded that the most important contributors online were those using pseudonyms. 100. As regards real-name policy, evidence from China showed that such a measure had caused a dramatic drop in the number of comments posted. Experience in South Korea had demonstrated that real-name policy failed to improve meaningfully comments, whereas it was discriminatory against domestic Internet companies, as the users had sought alternative, international platforms that still allowed anonymous and pseudonymous comments. 4. Media Legal Defence Initiative
101. Media Legal Defence Initiative (MLDI) made its submissions on behalf of twenty-eight non-governmental and media organisations and companies. It noted that the vast majority of online media outlets allowed reader comments. Through the comments facility, readers could debate the news amongst themselves as well as with journalists. This transformed the media from a one-way flow of communication into a participatory form of speech which recognised the voice of the reader and allowed different points of view to be aired. 102. MLDI noted that the boundaries between access and content were now increasingly blurred and “intermediaries” included enhanced search services, online marketplaces, web 2.0 applications and social networking sites. From the users’ perspective, they all facilitated access to and use of content and were crucial to the realisation of the right to freedom of expression. 103. MLDI contended that it was the States’ task to ensure a regulatory framework that protected and promoted freedom of expression whilst also guarding other rights and interests. It provided a detailed overview of the regulatory framework for intermediary liability in the United States of America and in the European Union. It noted that approaches in these jurisdictions were distinct, but nevertheless similar in that it was acknowledged that some level of protection for intermediaries was vital and that there was no requirement that intermediaries should monitor user content. It also noted that in some member States notice-and-take-down procedures had resulted in excessive liability on intermediaries and the taking down of legitimate content. 104. MLDI also elaborated on the emerging good practices in the regulation of user-generated content by online media. It pointed out that the majority of publications in North America and Europe did not screen or monitor comments before they were posted. They did, however, engage in some kind of post-publication moderation. Many online media outlets also ran filtering software and had mechanisms in place to block users who consistently broke the rules. The majority of online media, including leading European news outlets, required user registration but users were not required to disclose their real names. 5. EDiMA, CCIA Europe and EuroISPA
105. The European Digital Media Association (EDiMA), the Computer & Communications Industry Association (CCIA Europe) and EuroISPA, a pan-European association of European Internet Services Providers Associations, made joint submissions as third parties. 106. The third-party interveners argued that there was an established balance struck to date in legislation, international agreements and recommendations according to which, firstly, host service providers were exempt from liability for content in the absence of “actual knowledge” and, secondly, States were prohibited from requiring host providers to carry out general monitoring of content. 107. They noted that, while some information available online came from traditional publishing sources such as newspapers, and was rightly regulated by the law applicable to publishers, a large amount of online content came instead from individual speakers who could state their views unmediated by traditional editorial institutions. Comment facilities allowed for a right of reply and were thus fundamentally different from traditional publications, where no such right existed. 108. The third-party interveners argued that the technology and operating processes for an online news discussion forum like Delfi were technologically indistinguishable from hosting services such as social media/networking platforms, blogs/microblogs and others. Content composed and uploaded by users was automatically made publicly visible without human intervention. For many hosts considerations of scale made proactive human review of all user content effectively impossible. For small websites and start-ups, content control was likely to be particularly challenging and could be so costly as to be prohibitive. 109. The third-party interveners argued that established law in the European Union and other countries envisaged the notice-and-take-down system as a legal and practical framework for Internet content hosting. This balance of responsibilities between users and hosts allowed platforms to identify and remove defamatory or other unlawful speech, whilst at the same time enabling robust discussion on controversial topics of public debate; it made the operation of speech-hosting platforms practicable on a large scale. D. The Court’s assessment
1. Preliminary remarks and the scope of the Court’s assessment
110.

Article of the Convention at issue: Article 10
Outcome: no_violation