32
DELFI AS v. ESTONIA JUDGMENT
in the present case the interested person did not use the notice-and-takedown feature offered by the applicant company on its website, but rather
relied on making his claim in writing and sending it by mail, this was his
own choice, and in any event there is no dispute that the defamatory
comments were removed by the applicant company without delay after
receipt of the notice. Nevertheless, by that time the comments had already
been accessible to the public for six weeks.
89. The Court notes that in the interested person’s opinion, shared by the
domestic courts, the prior automatic filtering and notice-and-take-down
system used by the applicant company did not ensure sufficient protection
for the rights of third persons. The domestic courts attached importance in
this context to the fact that the publication of the news articles and making
public the readers’ comments on these articles was part of the applicant
company’s professional activity. It was interested in the number of readers
as well as comments, on which its advertising revenue depended. The Court
considers this argument pertinent in determining the proportionality of the
interference with the applicant company’s freedom of expression. It also
finds that publishing defamatory comments on a large Internet news portal,
as in the present case, implies a wide audience for the comments. The Court
further notes that the applicant company – and not a person whose
reputation could be at stake – was in a position to know about an article to
be published, to predict the nature of the possible comments prompted by it
and, above all, to take technical or manual measures to prevent defamatory
statements from being made public. Indeed, the actual writers of comments
could not modify or delete their comments once posted on the Delfi news
portal – only the applicant company had the technical means to do this.
Thus, the Court considers that the applicant company exercised a substantial
degree of control over the comments published on its portal even if it did
not make as much use as it could have done of the full extent of the control
at its disposal.
90. The Court has also had regard to the fact that the domestic courts did
not make any orders to the applicant company as to how the latter should
ensure the protection of third parties’ rights, leaving the choice to the
applicant company. Thus, no specific measures such as a requirement of
prior registration of users before they were allowed to post comments,
monitoring comments by the applicant company before making them
public, or speedy review of comments after posting, to name just a few,
were imposed on the applicant company. The Court considers the leeway
left to the applicant company in this respect to be an important factor
reducing the severity of the interference with its freedom of expression.
91. The Court has taken note of the applicant company’s argument that
the affected person could have brought a claim against the actual authors of
the comments. It attaches more weight, however, to the Government’s
counter-argument that for the purposes of bringing a civil claim it was very