Ülo Ennuste Economics

papers and articles in wordpress

Delfi v Estonia

Disinformation and propaganda – impact on the functioning of the rule of law in the EU and its Member States*

399 Delfi v Estonia (App 64569/09) ECtHR 2015. and MTE and Index v Hungary (App 22947/13) ECtHR 2016.

Delfi and MTE & Index399

The European Court of Human Rights (ECtHR) received a complaint from the online news portal Delfi, which was fined in Estonia for user comments that were posted in relation to one of its articles. While the article was found

Policy Department for Citizens’ Rights and Constitutional Affairs ____________________________________________________________________________________________

86

to be lawful (and contained information of public interest) about 20 of the related 185 comments contained personal threats and offensive language directed against the owner of the company, including racist remarks. The various instances of national courts disagreed on whether the Information Society Services Act, based on the e-Commerce Directive, was applicable. The Supreme Court found that the narrow definitions of Articles 12-14 of the Directive do not apply to Delfi, as “publishing the comments [we]re not merely of a technical, automatic and passive nature”.

It is worthwhile considering why eBay, Delfi, MTE and Index all believed that as online portals they could avail themselves of the exemption provided in Articles 14-15 of the e-Commerce Directive. They all regarded the questionable content as third-party content for which they bore no liability. At a minimum, it should be acknowledged that the law was not entirely clear on this: while the courts declared that they were not simple “hosting services”,400 they could not offer an alternative clause of liability.

400 In fact, “access services” would be closer to their activity, see Article 12. of e-Commerce Directive.

401 In the Delfi case, the content represented hate speech, and the commenting section brought revenues to the portal, so the Court found that the moderate fine did not violate Article 10. In the MTE & Index case, the content itself did not amount beyond justified criticism, and at least MTE was a non-profit portal of public interest issues.

402 Judgment of the Berlin Regional Court dated 16 January 2018, Case no. 16 O 341/15. The decision is not final.

https://www.vzbv.de/sites/default/files/downloads/2018/02/14/18-02-12_vzbv_pm_facebook-urteil_en.pdf

403 Contracting with external partners should also count here, including advertisers, and app creators.

The ECtHR even accepted without hesitation that the restriction was foreseeably laid down in law. It decided the case without regard to the issue of attribution of liability: simply on the basis of the content. In fact, the applicants should not have applied to the ECtHR, but rather should have urged their national courts to seek a preliminary judgement from the ECJ, as their main claim was not that their freedom of expression was violated, but that the content was not attributable to them. Although the applicants’ main service was providing content, their ancillary service included providing a platform for comments. In this respect, their threshold of responsibility should be similar to those whose primary activity is providing platform services, such as eBay or Facebook.401

These cases signal a considerable level of uncertainty in the legal interpretation of the roles and responsibilities of online service providers for third-party content, which raises a concern for the rule of law.

*) pp-85-86 – http://www.europarl.europa.eu/RegData/etudes/STUD/2019/608864/IPOL_STU(2019)608864_EN.pdf

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May 17, 2019 - Posted by | Uncategorized

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