Edited by Andrej Savin and Jan Trzaskowski
Chapter 21: Free speech, defamation and the limits to freedom of expression in the EU: a comparative analysis
In the recent case Delfi v Estonia, the European Court of Human Rights (ECtHR) was asked to review whether ordering an Internet news portal to pay damages for defamatory comments posted by users that the website had failed to promptly remove constituted a restriction of freedom of expression. How would the Strasbourg judges have decided the case if the same events had occurred in a ‘non digital environment’? What would have been the outcome if the same case had been brought before the Court of Justice of European Union (CJEU) or a US court? Also in light of these questions, the case seems to be a good starting point for the complexity of freedom of expression in the age of the Internet to emerge and for exploring how the new technologies have made it necessary to rethink its protection. In Delfi, the ECtHR found that art. 10 of the Convention does not afford protection to freedom of expression in absolute terms. Rather, art. 10 allows Contracting States to interfere with the exercise of this right provided that the said restrictions meet the conditions under para. 2, that is, (i) they are prescribed by law, (ii) they have a legitimate aim and (iii) they are necessary in a democratic society. What it is important to highlight is that the ECtHR, on one hand, considered that the legislation at stake posed a significant restriction, whereas, on the other, found that nevertheless the same did not amount to a violation of art. 10.
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