Index supports referral request in Delfi v. Estonia

14 Jan 14 | About Index, Campaigns, Press Releases, Statements

Dean Spielmann
President
European 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)

Index’s coverage: European ruling spells trouble for online comment

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.”[1] 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”.[2]

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.”[3]

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.[4] 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.[5]

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

[1] 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.

[2] Judgment of 18 December 2012, para. 54.

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

[4] 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.

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

Estonia: world press groups condemn threat to independent reporting

31 Mar 10 | Index Index, minipost, Uncategorized

The World Association of Newpapers and News Publishers,  the World Editors Forum,  and the European Newspaper Publishers Association have called on the government to drop a proposal that would enable courts to jail journalists who failed to reveal their sources, and impose fines on newspapers solely on the basis that they intend to publish “potentially harmful information”.  In an open letter to President Thomas Hendrik, the organizations said that proposed Source Protection Act would“have a significant negative impact on investigative journalism”and was in conflict with Estonia’s international treaty obligations. On 18 March, six leading newspapers published blank pages in protest at the draft legislation.

Estonia: A soldier’s torment

01 Nov 89 | Magazine, Magazine Editions, Volume 18.10 December 1989

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Has Russian disinformation caused Europe’s lurch to the right?

28 Jun 24 | Europe and Central Asia, European Union, News and features

While the outcome of the 2024 election is yet to be finalised, results at the time of writing show that Eurosceptic conservatives are on course to win an extra 14 seats (taking them to 83), while right-wing nationalists will gain nine seats (to 58). Overall, the right, including centre-right politicians of the European People’s Party grouping, has done well, largely at the expense of the liberal and green party groupings. With just five nations out of 27, including Italy and Estonia, remaining to publish their final results, the overall picture is unlikely to change dramatically.

The move to the far right is evident across Europe. France, which elects 81 members to the European Parliament (EP), was perhaps where this was most evident. Marine Le Pen’s far-right National Rally party is projected to receive around 31-32% of the vote, against President Macron’s centrist party, which is estimated to reach around 15% of the vote. Macron was so concerned about his party’s poor showing that he has called an election in the country. Belgium’s prime minister also handed in his resignation after the nationalist New Flemish Alliance emerged as the big winner after regional, national and European Parliament elections were held in the country on Super Sunday.

In Germany, Eurosceptic parties are projected to secure over 16% of the EP vote. The AfD tripled its support from voters under 24 from 5% in 2019 to 16% and gains six seats to reach 15. The Greens lost nine seats from 21 last time around. Austria’s far-right Freedom Party gained nearly 26% of the vote, gaining three seats, while in the Netherlands, Geert Wilders’s anti-immigration Party for Freedom gained six seats with 17% of the vote. A similar story played out in Poland, Spain, Greece, Bulgaria and Croatia.

But what is driving Europe’s veer to the right?

There is some evidence that the success of the far right comes from millennial and Gen Z voters shifting towards these parties. A third of French voters under 34 and 22% of young German voters favour their country’s far right, while in the Netherlands, the Party for Freedom has become the largest party among under-34s.

Young Europeans, mainly those aged 18-29, overwhelmingly rely on social media for daily news consumption. In Italy and Denmark, nearly three-quarters of young adults use social media for news daily (74% and 75%). A recent German youth study found that 57% of youth prefer social media for news and political updates.

There is growing concern that external actors, particularly from Russia, may have influenced the elections.

Media reports reveal that EU leaders were so concerned about foreign interference in the elections that they set up rapid alert teams to manage any serious incidents. Officials told the Guardian that disinformation has reached “tsunami levels.”

The evidence points to Russia.

Last December, France’s VIGINUM group, which is tasked with protecting France and its interests against foreign digital interference, published a report revealing a network of nearly 200 websites with addresses of the form pravda-xx.com or xx.news-pravda.com, where xx is the country identifier.

The sites, which generate little new content themselves, instead amplify existing pro-Russian content from state sources and social media, including posts from military blogger Mikhail Zvinchuk. Pro-Russian content relating to the Ukraine war is a particular favourite.

Thirty-four fact-checking organisations in Europe, showed that the Pravda network had spread to at least 19 EU countries. Fact-checking organisation Greece Fact Check, in cooperation with Pagella Politica and Facta news, has since noticed that the Pravda network has been attempting to convey large amounts of disinformation and pro-Russia propaganda to sway EU public opinion.

The organisation said that “minor pro-Russian politicians who run for the elections are quoted by state media such as Ria and then further amplified by the Pravda network, in what seems an attempt to magnify their relevance”.

A report by EDMO on EU-related disinformation ahead of the elections found that it was at its highest ever level in May 2024. Ministers for European affairs from France, Germany, and Poland cautioned about efforts to manipulate information and mislead voters. Across the EU, authorities observed a resurgence in coordinated operations spreading anti-EU and Ukraine narratives through fake news websites and on social media platforms Facebook and X.

Among the false stories that emerged and covered were reports that EU President Ursula Von der Leyen had links to Nazism and had been arrested in the European Parliament.

In Germany, there were stories circulating that the country’s vote was being manipulated, ballot papers with holes or corners cut were invalid and that anyone voting for the far-right party AfD would follow stricter rules. Other stories attempted to trick voters into multiple voting or signing their ballot papers, practices that would invalidate their votes.

The report also noted that around 4% of such disinformation articles have been created using AI tools.

The tsunami of disinformation looks unlikely to fade away any time soon. The Guardian says that the EU’s rapid alert teams have been asked to continue their work for weeks after the election.

A senior official told the paper, “The expectation is that it is around election day that we will see this interruption of narratives questioning the legitimacy of the European elections, and in the weeks around it.”