DELFI AS v. ESTONIA JUDGMENT
25
also indicated a variety of problems related to the notice-and-take-down
procedure which called for more precise regulation.
3. The Court’s assessment
(a) Existence of an interference
69. The Court notes that the focus of the parties’ arguments differed as
regards the applicant company’s role in the present case. The Government
were of the opinion that the applicant company was to be considered the
discloser of the defamatory comments, whereas the applicant company
considered that the comments had been published by third parties and the
applicant company’s freedom to impart information had been interfered
with (see paragraphs 48 and 49 above). Regardless of the exact role to be
attributed to the applicant company’s activities, it is not, in substance, in
dispute between the parties that the domestic courts’ decisions in respect of
the applicant company constituted an interference with its freedom of
expression guaranteed under Article 10 of the Convention. The Court sees
no reason to hold otherwise (see also paragraph 50 above).
70. Such an interference with the applicant company’s right to freedom
of expression must be “prescribed by law”, have one or more legitimate
aims in the light of paragraph 2 of Article 10, and be “necessary in a
democratic society”.
(b) Lawfulness
71. The Court reiterates that a norm cannot be regarded as a “law”
within the meaning of Article 10 § 2 unless it is formulated with sufficient
precision to enable the citizen to regulate his conduct; he must be able – if
need be with appropriate advice – to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may entail.
Those consequences need not be foreseeable with absolute certainty. Whilst
certainty is desirable, it may bring in its train excessive rigidity, and the law
must be able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser extent, are
vague, and whose interpretation and application are questions of practice
(see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC],
nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV)
72. The Court further reiterates that the scope of the notion of
foreseeability depends to a considerable degree on the content of the text in
issue, the field it is designed to cover, and the number and status of those to
whom it is addressed. A law may still satisfy the requirement of
foreseeability even if the person concerned has to take appropriate legal
advice to assess, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail. This is particularly true in