On 10 October 2013, the European Court of Human Rights ruled in the case Delfi As v. Estonia that there was no violation of Article 10 ECHR (freedom of expression) where an Internet news portal had been held liable for offensive comments posted by readers. The finding of liability by the Estonian courts was considered a justified and proportionate restriction on the portal’s right to freedom of expression, taking into account the facts of the case. It should be noted that the Court did not address the issue under EU law (limitation of liability for ISPs in the E-commerce Directive).

Delfi, one of the largest internet news sites in Estonia, was held liable by the Estonian courts for the defamatory comments posted online by readers under a news article. The domestic courts rejected Delfi's argument that it should not be held liable as an Internet service provider within the scope of the 2000/31/ E-commerce Directive.

Delfi appealed the national court decisions to the European Court of Human Rights, arguing that they constitute an interference with its freedom of expression guaranteed under Art.10 ECHR. The Court agreed, but found that they fell within the exemption under Art. 10(2) ECHR as a proportionate restriction "prescribed by law" for a legitimate aim.

According to Delfi, the interference was not "prescribed by law" given the limitation of liability under the E-commerce Directive, as implemented by Estonian law. The Court, however, confirmed that it is not its task to take the place of the domestic courts: it is primarily for the national 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. The Court determined that, as professional publisher, Delfi was in a position to assess the risks related to its activities and must have been able to foresee the consequences which these could entail. The interference had therefore been "prescribed by law".

Furthermore, the Court held that the restriction on the freedom of expression had the legitimate aim of protecting a person’s reputation (protected as part of the right to respect for private life by Art.8 ECHR).

The Court noted that there was no dispute that the comments in question were defamatory and that Delfi had promptly removed the comments once it had been notified. However, according to the Court, Delfi’s civil liability for these defamatory comments amounted to a justified and proportionate interference with its right to freedom of expression 4 key factors: (1) given the nature of the article, Delfi should have expected offensive posts and should have exercised an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation; (2) While measures had been put in place by Delfi (disclaimer, automatic-word filtering and notice-and-take-down notification system), these were not sufficient. The warnings failed to prevent a large number of insulting comments from being made, and they were not removed in good time by the automatic-word filtering or by the notice-and-take-down notification system; (3) making the actual authors liable would have been extremely difficult, as readers were allowed to make comments anonymously. Making Delfi legally responsible for the comments was therefore practical and also reasonable, because the news portal received commercial benefit from comments being made; (4) the consequences of domestic proceedings were not disproportionate as the sanctions imposed by the Estonian courts were reasonable.

The judgment could have implications for all internet content providers that have websites or fora open to readers' comments. However, this Chamber judgment is not final and Delfi still has the opportunity to request a referral to the Grand Chamber.