[P2P-F] Fwd: [fcf_discussion] Civil Society Calls on the ECHR's Grand Chamber to Overturn Delfi v. Estonia Ruling

Sun Jan 19 01:11:00 CET 2014

---------- Forwarded message ----------
From: La Quadrature du Net <jz at laquadrature.net>
Date: Wed, Jan 15, 2014 at 6:38 PM
Subject: [fcf_discussion] Civil Society Calls on the ECHR's Grand Chamber
to Overturn Delfi v. Estonia Ruling
To: fcforum_discussion at list.fcforum.net

Themes: CENSORSHIP, FREE SPEECH, EUROPEAN COURT OF HUMAN RIGHTS

La Quadrature du Net – For immediate release

Permanent link:
https://www.laquadrature.net/en/civil-society-calls-on-the-echrs-grand-chamber-to-overturn-delfi-v-estonia-ruling

Civil Society Calls on the ECHR's Grand Chamber to Overturn Delfi v.
Estonia Ruling

*** Paris, 15 January 2014 — Last October, the European Court of Human
Rights issued a ruling against an Estonian news portal (“Delfi”), making
the platform liable for defamatory comments posted by third users. This
ruling threatens to encourage privatised censorship and to severely
undermine public debate online. From a legal perspective, as NGO Article 19
wrote [1] at the time, “this judgment displays a profound failure to
understand the EU legal framework regulating intermediary liability. In
addition, it conveniently ignores relevant international standards in the
area of freedom of expression on the Internet”. Many organizations and
companies all across Europe have sent the following letter to the ECHR's
president to support Delfi's appeal to the Court's “Grand Chamber”, which
still has the power to overturn this dangerous ruling. ***

    To:
    Dean Spielmann
    President ofEuropean Court of Human Rights
    Council of Europe
    F-67075 Strasbourg cedex
    France

    13 January 2014

    Re: Grand Chamber referral in Delfi v. Estonia (Application no.
64569/09)

    Dear President Spielmann and members of the panel:

    We, the undersigned 69 media organisations, internet companies, human
rights groups and academic institutions write to support the referral
request that we understand has been submitted in the case of Delfi v.
Estonia (Application No. 64569/09). Signatories to this letter include some
of the largest global news organisations and internet companies including
Google, Forbes, News Corp, Thomson Reuters, the New York Times, Bloomberg
News, Guardian News and Media, the World Association of Newspapers and News
Publishers and Conde Nast; prominent European media companies and
associations including the European Newspaper Publishers’ Association,
Sanoma Media Netherlands B.V. and the European Publishers Council; national
media outlets and journalists associations from across the continent; and
advocacy groups including Index on Censorship, Greenpeace, the Center for
Democracy and Technology and ARTICLE 19.

    We understand that the applicant in the above-referenced case has
requested that the chamber judgment of 10 October 2013 be referred to the
Grand Chamber of the Court for reconsideration. We are writing to endorse
Delfi’s request for a referral due to our shared concern that the chamber
judgment, if it stands, would have serious adverse repercussions for
freedom of expression and democratic openness in the digital era. In terms
of Article 43 (2) of the Convention, we believe that liability for
user-generated content on the Internet constitutes both a serious question
affecting the interpretation or application of Article 10 of the Convention
in the online environment and a serious issue of general importance.

    The case involves the liability of an online news portal for
third-party defamatory comments posted by readers on the portal’s website,
below a news item. A unanimous chamber of the First Section found no
violation of Article 10, even though the news piece itself was found to be
balanced and contained no offensive language. The portal acted quickly to
remove the defamatory comments as soon as it received a complaint from the
affected person, the manager of a large private company.

    We find the chamber’s arguments and conclusions deeply problematic for
the following reasons.

    First, the chamber judgment failed to clarify and address the nature of
the duty imposed on websites carrying user-generated content: what are they
to do to avoid civil and potentially criminal liability in such cases? The
inevitable implication of the chamber ruling is that it is consistent with
Article 10 to impose some form of strict liability on online publications
for all third-party content they may carry. This would translate, in
effect, into a duty to prevent the posting, for any period of time, of any
user-generated content that may be defamatory.

    Such a duty would place a very significant burden on most online news
and comment operations – from major commercial outlets to small local
newspapers, NGO websites and individual bloggers – and would be bound to
produce significant censoring, or even complete elimination, of user
comments to steer clear of legal trouble. The Delfi chamber appears not to
have properly considered the implications for user comments, which on
balance tend to enrich and democratize online debates, as part of the
‘public sphere’.

    Such an approach is at odds with this Court’s recent jurisprudence,
which has recognized that “[i]n light of its accessibility and its capacity
to store and communicate vast amounts of information, the Internet plays an
important role in enhancing the public’s access to news and facilitating
the dissemination of information generally.” [2] Likewise, in Ahmet
Yildirim v. Turkey, the Second Section of the Court emphasised that “the
Internet has now become one of the principal means of exercising the right
to freedom of expression and information, providing as it does essential
tools for participation in activities and discussions concerning political
issues and issues of general interest” [3].

    Secondly, the chamber ruling is inconsistent with Council of Europe
standards as well as the letter and spirit of European Union law. In a
widely cited 2003 Declaration, the Committee of Ministers of the Council of
Europe urged member states to adopt the following policy:

    “In cases where … service providers … 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 … of their illegal nature.

    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.” [4]

    The same position was essentially adopted by the European Union through
the Electronic Commerce Directive of 2000. Under the Directive, member
states cannot impose on intermediaries a general duty to monitor the
legality of third-party communications; they can only be held liable if
they fail to act “expeditiously” upon obtaining “actual knowledge” of any
illegality. This approach is considered a crucial guarantee for freedom of
expression since it tends to promote self-regulation, minimizes the need
for private censorship, and prevents overbroad monitoring and filtering of
user content that tends to have a chilling effect on online public debate.

    Thirdly, it follows from the above that the Delfi chamber did not
thoroughly assess whether the decisions of the Estonian authorities were
“prescribed by law” within the meaning of Article 10 § 2. Under the
E-Commerce Directive and relevant judgments of the Court of Justice of the
European Union (CJEU), it was not unreasonable for Delfi to believe that it
would be protected by the “safe harbour” provisions of EU law in
circumstances such as those of the current case [5]. The chamber ruling
sets the Court on a potential course of collision with the case law of the
CJEU and may also give rise to a conflict under Article 53 of the
Convention.

    Finally, the chamber ruling is also at odds with emerging practice in
the member states, which are seeking innovative solutions to the unique
complexities of the Internet. In the UK, for example, the new defamation
reforms for England and Wales contain a number of regulations applicable
specifically to defamation through the Internet, including with respect to
anonymous third-party comments. Simply applying traditional rules of
editorial responsibility is not the answer to the new challenges of the
digital era. For similar reasons, related among others to the application
of binding EU law, a recent Northern Ireland High Court judgment expressly
chose not to follow the Delfi chamber ruling [6].

    For all these reasons, we strongly urge the Court to accept the
applicant’s request for a referral that would allow the Grand Chamber to
reconsider these issues, taking into account the points raised by the
signatories in this letter. There is no question in our minds that the
current case raises “a serious question affecting the interpretation” of
Article 10 of the Convention as well as “a serious issue of general
importance” (Art. 43).

    Sincerely,

        - Algemene Vereniging van Beroepsjournalisten in België
        - American Society of News Editors
        - ARTICLE 19
        - Association of American Publishers, Inc
        - Association of European Journalists
        - Bloomberg
        - bvba Les Journaux Francophones Belges
        - Center for Democracy and Technology
        - Conde Nast International Ltd.
        - Daily Beast Company, LLC
        - Digital First Media, LLC
        - Digital Media Law Project, Berkman Center for Internet & Society
– Harvard University
        - Digital Rights Ireland
        - Dow Jones
        - Electronic Frontier Finland
        - Estonian Newspapers Assocation (Eesti Ajalehtede Liit)
        - EURALO (ICANN’s European At-Large Organization)
        - European Digital Rights (EDRi)
        - European Information Society Institute (EISi)
        - European Magazine Media Association
        - European Media Platform
        - European Newspaper Publishers’ Association (ENPA)
        - European Publishers Council
        - Federatie van periodieke pers, the Ppress
        - Forbes
        - Global Voices Advocacy
        - Google, Inc.
        - Greenpeace
        - Guardian News & Media Limited
        - Human Rights Center, Ghent University
        - Hungarian Civil Liberties Union
        - iMinds-KU Leuven, Interdisciplinary Centre for Law and ICT
        - Index on Censorship
        - International Press Institute
        - Internet Democracy Project
        - La Quadrature du Net
        - Lithuanian Online Media Association
        - Mass Media Defence Center
        - Media Foundation Leipzig
        - Media Law Resource Center
        - Media Legal Defence Initiative
        - National Press Photographers Association
        - National Public Radio
        - Nederlands Genootschap van Hoofdredacteuren
        - Nederlands Uitgeversverbond (NUV)
        - Nederlandse Vereniging van Journalisten
        - Net Users’ Rights Protection Association
        - News Corp.
        - Newspaper Association of America
        - North Jersey Media Group, Inc
        - NRC Handelsblad
        - Online News Association
        - Open Media Coalition – Italy
        - Open Rights Group
        - Panoptykon
        - PEN International
        - PEN-Vlaanderen
        - Persvrijheidsfonds
        - Raad voor de Journalistiek
        - Radio Television Digital News Association
        - Raycom Media, Inc.
        - Reporters Committee for Freedom of the Press
        - Sanoma Media Netherlands B.V.
        - Telegraaf Media Groep NV
        - The New York Times Company
        - Thomson Reuters
        - Vlaamse Nieuwsmedia
        - Vlaamse Vereniging van Journalisten
        - Vrijschrift
        - World Association of Newspapers and News Publishers

* References *

1.
http://www.article19.org/resources.php/resource/37287/en/european-court-strikes-serious-blow-to-free-speech-online

2. Times Newspapers Ltd v. the United Kingdom (Nos. 1 and 2), Judgment of
10 March 2009, para. 27. See also Editorial Board of Pravoye Delo and
Shtekel v. Ukraine, Judgment of 5 May 2011.

3. Judgment of 18 December 2012, para. 54.

4. Declaration on freedom of communication on the Internet, 28 May 2003,
adopted at the 840th meeting of the Ministers’ Deputies.

5. The CJEU has ruled, with reference inter alia to Article 10 ECHR, that
an Internet service provider cannot be required to install a system
filtering (scanning) all electronic communication passing through its
services as this would amount to a preventive measure and a
disproportionate interference with its users’ freedom of expression and
information. See Scarlet v. Sabam, Case C-70/10, Judgment of 24 November
2011; and Netlog v. Sabam, Case C-360/10, Judgment of 16 February 2012.

6. J19 & Anor v Facebook Ireland [2013] NIQB 113 (15 November 2013), at
http://www.bailii.org/nie/cases/NIHC/QB/2013/113.html.

** About La Quadrature du Net **

La Quadrature du Net is an advocacy group that defends the rights and
freedoms of citizens on the Internet. More specifically, it advocates for
the adaptation of French and European legislations to respect the founding
principles of the Internet, most notably the free circulation of knowledge.

In addition to its advocacy work, the group also aims to foster a better
understanding of legislative processes among citizens. Through specific and
pertinent information and tools, La Quadrature du Net hopes to encourage
citizens' participation in the public debate on rights and freedoms in the
digital age.

La Quadrature du Net is supported by French, European and international
NGOs including the Electronic Frontier Foundation, the Open Society
Institute and Privacy International.

List of supporting organisations:
https://www.laquadrature.net/en/they-support-la-quadrature-du-net

** Press contact and press room **

Jérémie Zimmermann, jz at laquadrature.net, +33 (0)615 940 675

http://www.laquadrature.net/en/press-room

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