Having failed to make its argument that it was a mere conduit deserving protection under the E-Commerce Directive, Delfi changed tack and took its case not to the Court of Justice of the European Union, but to the European Court of Human Rights, which accepts cases from 47 signatory states of the European Convention on Human Rights. There it argued that the judgment of the Estonian courts violates the convention's Article 10, which covers freedom of expression.
The court initially rejected Delfi's arguments in 2013, but the company again appealed. In Tuesday's ruling the court's Grand Chamber upheld the earlier decision against Delfi.
Delfi's editor in chief, Urmo Soonvald, said in an article on Delfi's portal that freedom of speech in Europe has been badly hit.
While the judges attempted to finesse a distinction between requiring that the portal only take down manifestly illegal content of its own initiative, and requiring it to review user generated content prior to publication, Lorna Woods, a professor of Internet law at the University of Essex in the U.K., was dismissive of this argument. "Both effectively require monitoring (or an uncanny ability to predict when hate speech will be posted)," she wrote on the blog of the London School of Economics Media Policy Project.
"Both approaches implicitly reject notice and take down systems, which are used — possibly as a result of the E-Commerce Directive framework — by many sites in Europe," she wrote.
Journalist and media law consultant David Banks played down the ruling's impact on news sites, in the U.K. at least: "I think here in the U.K. the effect will be minimal. News sites here, because of the way our libel laws operate, are used to liability occurring if they fail to remove content where they have been notified of a problem."
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