Internet trolls and why Strasbourg doesn’t want to get involved
by Rosalind English UK Human Rights Blog
Delfi AS v Estonia (Application no. 64569/09) 10 October 2013
One of the reasons why the Court considered that no breach of Article 10 had been disclosed by the Estonian authorities was that it accepted the national courts’ interpretation of the EU Directive. This diffidence on the part of Strasbourg is somewhat surprising approach, given that in other areas it rarely hesitates in having a go at the way member states have interpreted and applied their own or international law. This is what it said:
As regards the applicant company’s argument that its liability was limited under the EU Directive on Electronic Commerce and the Information Society Services Act, the Court notes that the domestic courts found that the applicant company’s activities did not fall within the scope of these acts. The Court reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among others, Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports of Judgments and Decisions 1998 VIII).
One is tempted to wonder if the Court shied away from addressing the issue, not because it was a “problem of interpretation of domestic legislation”, but because it was a potentially difficult and controversial question of EU law. If one looks at the problem from the applicant company’s perspective, Strasbourg’s reasons do not really stack up. The Court considered that the 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 found that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention. But the company had done precisely that: it had looked at the EU Directive, as well as the Estonian statute under which it was transposed, and had quite justifiably considered that under it internet platforms such as its own news portal would not be liable for statements posted on it, and it proceeded accordingly. However, its risk assessment had not taken into account the possibility that the local courts would not consider the EU Directive or the Information Society Services Act relevant to the company’s business. But how was it to predict that the courts would prefer the pertinent provisions of the civil law and domestic case-law, under which media publications were liable for their publications along with the authors?
Given Strasbourg’s reluctance to go anywhere near EU law, the applicant company might have done better requesting the Estonian court to refer the question by way of the reference procedure under Art. 267 TFEU requesting a preliminary ruling from the CJEU on the scope of the Electronic Commerce Directive and the adequacy of Estonia’s transposition. Be that as it may, Strasbourg will not be able to continue in its squeamishness about EU law, particularly when the EU accedes to the European Convention on Human Rights – see David Hart’s post earlier this year on How the ECtHR is indeed going to watch the EU.