DELFI AS v. ESTONIA JUDGMENT
27
conceived in respect of hard copies of documents were also deemed to apply
to electronically stored documents). This does not mean that the provisions
of the civil law in question did not constitute a sufficiently clear legal basis
for the applicant company’s liability, or that gradual clarification of legal
rules was outlawed (compare, mutatis mutandis, Radio France and Others
v. France, no. 53984/00, §§ 20 and 30, ECHR 2004-II). Indeed, general
provisions of law can at times make for a better adaptation to changing
circumstances than can attempts at detailed regulation (see, for comparison,
Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03
and 23676/03, §§ 20, 21 and 38, ECHR 2009, where the “Internet
publication rule” relied on a rule originally dating from the year 1849, and
Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05,
§§ 60-68, ECHR 2011 (extracts), where the lack of reference to Internet
publications in the otherwise quite detailed media law gave rise to an issue
of lawfulness under Article 10 of the Convention).
76. The Court accordingly finds that, as a professional publisher, the
applicant company must at least have been familiar with the legislation and
case-law, and could also have sought legal advice. The Court observes in
this context that the Delfi news portal is one of the largest in Estonia, and
also that a degree of notoriety has been attributable to comments posted in
its commenting area. Thus, the Court considers that the applicant company
was in a position to assess the risks related to its activities and that it must
have been able to foresee, to a reasonable degree, the consequences which
these could entail. It therefore finds that the interference in issue was
“prescribed by law” within the meaning of the second paragraph of
Article 10 of the Convention.
(c) Legitimate aim
77. The Court considers that the restriction of the applicant company’s
freedom of expression pursued a legitimate aim of protecting the reputation
and rights of others. The Court has taken note of the applicant company’s
argument about the liability of the actual authors of the comments.
However, in the Court’s view the fact that the actual authors were also in
principle liable does not remove the legitimate aim of holding the applicant
company liable for any damage to the reputation and rights of others. The
question of whether the applicant company’s rights under Article 10 were
excessively restricted in the present case by holding it liable for comments
written by third parties is a question of whether the restriction was
“necessary in a democratic society”, to be dealt with below.