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DELFI AS v. ESTONIA JUDGMENT
12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111,
10 May 2011).
83. The Court has considered that where the right to freedom of
expression is being balanced against the right to respect for private life, the
relevant criteria in the balancing exercise include the following elements:
contribution to a debate of general interest, how well known the person
concerned is, the subject of the report, the prior conduct of the person
concerned, the method of obtaining the information and its veracity, the
content, form and consequences of the publication, and the severity of the
sanction imposed (see Axel Springer AG, cited above, §§ 89-95, and Von
Hannover (no. 2), cited above, §§ 108-113).
(ii) Application of the principles to the present case
84. Turning to the present case, the Court notes at the outset that there is
no dispute that comments posted by readers in reaction to the news article
published on the applicant company’s Internet news portal were of a
defamatory nature. Indeed, the applicant company promptly removed the
comments once it was notified by the injured party, and described them as
“infringing” and “illicit” before the Court. However, the parties’ views
differ as to whether the applicant company’s civil liability for the
defamatory comments amounted to a disproportionate interference with its
freedom of expression. In other words, the question is whether the applicant
company’s obligation, as established by the domestic judicial authorities, to
ensure that comments posted on its Internet portal did not infringe the
personality rights of third persons was in accordance with the guarantees set
out in Article 10 of the Convention.
85. In order to resolve this question, the Court will proceed to analyse in
turn a number of factors which it considers to be of importance in the
circumstances of the present case. Firstly, the Court will examine 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.
86. The Court notes that the news article published on the Delfi news
portal addressed a topic of a certain degree of public interest. It discussed a
shipping company’s moving its ferries from one route to another and in
doing so breaking the ice at potential locations of ice roads, as a result of
which the opening of such roads – a cheaper and faster connection to the
islands compared to the company’s ferry services – was postponed for
several weeks. The article itself was a balanced one, a manager of the
shipping company was given the opportunity to provide explanations, and
the article contained no offensive language. Indeed, the article itself gave
rise to no arguments about defamation in the domestic proceedings.